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There are no known copyright restrictions in
the United States on the use of the text.
http://www.archive.org/details/cu31924016945770
THE LIBRARY OF WORLD AFFAIRS
Editors :
George W. Keeton
and
Georg Schwarzenberger
Number 16
THE INTERNATIONAL LAW OF RECOGNITION
AUSTRALIA
The Law Book Co. of Australasia Pty. Limited
Sydney : : Melbourne : : Brisbane
INDIA
N. M. Tripathi, Limited
Bombay
U.SA. AND CANADA
Frederick A. Praeger, Inc.
New York
THE
INTERNATIONAL LAW
OF
RECOGNITION
With Special Reference to Practice in
Great Britain and the United States
BY
TI-CHIANG CHEN, d.phil. (oxon.
Associate Professor of International Law,
Tsing Hua University, Peking
EDITED BY
L. C. GREEN, llb.
Lecturer in International Law and Relations
at University College, London
WITH A FOREWORD BY
J. L. BRIERLY
Professor Emeritus of International Law,
University of Oxford
Published under the auspices of
THE LONDON INSTITUTE OF WORLD AFFAIRS
NEW YORK
FREDERICK A. PRAEGER, INC.
1951
First Edition 1951
Published in the United States
by Frederick A. Praeger, Inc.
Publishers of New York City
First published in 1951
by Stevens & Sons Limited
of 119 & 120 Chancery Lane,
London — Law Publishers,
and printed in Great Britain
by Bradford & Dickens of
London
~£ F5V/3
TO MY PARENTS
CONTENTS
Foreword
. page
xi
Preface
xiii
Editor's Note
XV
Table of Cases
xvii
Table of Treaties
XXV
Abbreviations
xxvii
Introduction
3
PART ONE
RECOGNITION OF STATES
1. The Recognition of States and the Obligatory
Character of International Law 13
The Rival Doctrines of Recognition
Relations Between the Theories of Recognition and
the Theories of the Obligatory Character of Inter-
national Law
Positivism Examined
Law Above the State
2. Theory of the Recognition of States 30
Recognition and the International Personality of ,
States
The Mechanism of Recognition
Modifications of the Constitutive Theory
The Duty of Recognition
The Conditions for Recognition
Criticisms of the Declaratory Theory
3. Recognition of States in Practice 79
Official Opinions
Judicial Opinions
PART TWO
RECOGNITION OF GOVERNMENTS
4. Recognition of Governments and of States ...
5. The Doctrine of Legitimacy
6. The Declaratory or De Facto Doctrine
97
105
117
VII
viii Contents
PART THREE
LEGAL EFFECTS OF RECOGNITION
7. The Effects of Recognition 133
8. The Right of Unrecognised Powers to Sue 135
9. Immunity from Legal Process 140
Immunity from Suit
Immunity of Property
10. Validity of Laws and Acts : Public Rights 145
1 1 . Validity of Laws and Acts : Private Rights 1 50
Personal Status of Individuals
Status of Corporations
Property
Marriage and Divorce
Contract and Succession
Procedural Rights of Private Litigants
1 2. Suggestions for a Realistic Approach 166
13. Retroactivity of Recognition 172
The Doctrine of Retroactivity of Recognition
The Extent of the Application of the Doctrine
Criticisms of the Doctrine
PART FOUR
MODES OF RECOGNITION
14. Modes of Recognition 189
Express Declaration
Bilateral Treaties
Exchange of Diplomatic Representatives
Consuls and Exequaturs
""International Conferences, Multilateral Treaties,
and International Organisations
Relations Officieuses
Collective Recognition
1 5. Recognition : By Whom Determinable 224
Organ for Recognition
Organ for Interpretation
The De Facto Situation and the Courts
Contents ix
PART FIVE
QUALIFIED RECOGNITION
16. Revocability of Recognition 259
17. Conditional Recognition 265
18. De Facto and De Jure Recognition 270
The International and the Constitutional Sense of
the Term
De Facto Recognition and Recognition as a De Facto
Government (or State)
De Jure Recognition and De Facto Recognition
De Jure Government and De Facto Government
PART SIX
RECOGNITION OF BELLIGERENCY AND
INSURGENCY
19. Legal Personality of a Belligerent Community ... 303
20. Belligerent Community as a De Facto Government 307
From the Point of View of the Established
Government
From the Point of View of Third States
21. The Nature of the Recognition of Belligerency ... 333
22. The Duty of Recognition 352
23. Conditions for Recognition 364
24. Modes of Recognition 369
Who is Competent to Accord Recognition?
Modes of Recognition
Which Organ of the State is Competent to Accord
Recognition?
25. Termination of Belligerency 395
26. Recognition of Insurgency 398
x Contents
PART SEVEN
THE DOCTRINE OF NON-RECOGNITION
27. The Meaning of the Doctrine 411
28. The Obligation of Non-Recognition 416
29. The Doctrine of Non-Recognition and the Maxim
Ex Factis Jus Oritur 420
30. The Doctrine of Non-Recognition and the Existence
of Objective Law 423
31. The Application of the Doctrine 429
New States, New Governments and Belligerency
Acquisition of Territory
Treaties
32. Non-Recognition as a Sanction 441
Bibliography ... ... ... ... 445
Index 453
FOREWORD
Although Recognition has probably been more discussed among
international lawyers in recent years than any other part of the
international legal system, the controversy which still exists as
to its nature and effects is a sufficient justification, if one should
seem to be needed, for another book on the subject. For this
controversy is more than a mere difference of opinion among
lawyers as to the true rule of law on some particular question
or questions; it reflects, as Dr. Chen writes in the opening words
of this book, a ' fundamental cleavage between those who regard
the State as the ultimate source of international rights and duties,
and those who regard it as being under a system of law which
determines its rights and duties '. That this is indeed the issue at
stake between the adherents of the constitutive and those of the
declaratory theory of Recognition is the guiding theme which runs
through this book, and Dr. Chen has adduced powerful argu-
ments to prove, firstly, that if the former theory is consistent with
itself, it must logically lead to a denial of the obligatory character
of international law, and, secondly, that the balance of authority
in State practice and in the jurisprudence of courts is strongly in
favour of the latter.
But Recognition is not only a subject of crucial importance
from the point of view of international legal doctrine; it is also
a matter of great and constantly recurring concern to foreign
offices and to that growing body of international lawyers whose
primary interest is in the practical application of the system. To
these Dr. Chen's book will be useful for the full and scholarly
examination which he has made of the abundant materials to be
found in the practice of States, in judicial decisions, and in the
literature of the subject. The evidence is often conflicting or
indecisive, but if these defects are ever to be eliminated an indis-
pensable preliminary step is the scientific determination of the
law as it exists with all its imperfections and uncertainties. To
that, I believe, Dr. Chen's book makes a valuable contribution.
Recognition is one of the topics which the International Law
Commission recently established by the United Nations has
xi
xii Foreword
included in a list of topics on which it hopes in due course to
prepare codifying drafts. The choice was almost inevitable, for
under the head of 'codification' the Commission has been
charged with the task of preparing ' the more precise formulation
and systematisation of rules of international law in fields where
there has already been extensive State practice, precedent, and
doctrine \ and Recognition obviously falls within this field. But
even a cursory reading of Dr. Chen's book will show the diffi-
culties of the task which the Commission proposes to undertake,
and it would be unwise to look for quick results. There does
seem, however, today to be a more general realisation that the
improvement and extension of international law is a crying need
of our time, and this seems to be combined with a fuller under-
standing than formerly of the necessity of supplying a solid
foundation for the work. That foundation can only be provided
by patient and thoroughly objective preparatory research work
on the part of international lawyers on lines such as those which
Dr. Chen has followed in this book.
After completing this book Dr. Chen was obliged to leave this
country to take up the post of Associate Professor in the National
Tsing Hua University, Peking, and he has therefore been unable
to see the book through the press himself. Fortunately, the
publishers were able to enlist the help of Mr. L. C. Green,
Lecturer in International Law and Relations at University
College, London. Mr. Green's task has been a heavy one, for
besides the usual editorial work of verifying citations and
preparing an index he has had to do his best to ensure that the text
should be up to date on publication, and even in the short time
since the book was completed much has happened in the world
that is relevant to its subject matter. Dr. Chen has asked me to
acknowledge on his behalf the debt that he owes to Mr. Green
for the admirable way in which he has carried out this task.
J. L. BRIERLY.
Oxford,
April, 1951.
PREFACE
The problem of recognition is, by general agreement, one of the
most perplexing problems of international law. An attempt is
here made to examine the various aspects of the problem in the
light of British and American practice, and to induce therefrom
certain underlying principles which may afford explanations for
what might otherwise appear to be somewhat bewildering
phenomena in international life.
The appearance of Professor Lauterpacht's Recognition in
International Law at the final stage of this work, while setting
the author the problem of the extent to which it had become
redundant because of duplication, bears testimony, however, to
the importance of the problem, and the possible divergence of
points of view that justifies the completion of the work.
Professor Lauterpacht's book is both an inspiration and a
standard for the present author, although the conclusions reached
here may not always be the same as those of the learned Professor.
The author would like to take this opportunity to acknowledge
his indebtedness to Professor J. L. Brierly for the unfailing help
and encouragement he has so freely given. The author con-
gratulates himself on the enviable fortune of having worked under
the guidance of so great an authority.
A word of thanks is also due to the British Council, without
whose financial assistance the preparation of this work could
never have been undertaken.
Ti-Chiang Chen.
Lincoln College, Oxford,
1947.
Xlll
EDITOR'S NOTE
After completing the manuscript of this work, Dr. Chen returned
to China. It was therefore impossible for him to see it through the
Press and bring it up to date by including those cases and incidents
which had arisen between the date of writing and the setting of the
type. At the request of the Editors of the Library of World
Affairs, I undertook the task of editing the manuscript for
publication.
Any formal alterations I have made, for example, a reference
to a newly published work, are embodied straight into the text or
footnotes, as the case may be, without any indication to show
that they have been added by me. But, since I was unable to
discuss my suggestions with Dr. Chen, wherever I have made
any material additions, such as the discussion concerning the
recognition of Israel or Korea, I have indicated this fact by the
use of square brackets.
I frequently found it necessary to approach the Legal Depart-
ments of His Majesty's Foreign Office and of the United States
State Department for documentary information concerning recent
cases of recognition. Whenever I did so, I found Sir Eric Beckett,
K.C.M.G., K.C., and the United States authorities extremely
willing to help, and I would like to take this opportunity to express
my sincere thanks to them for all the information they so freely
placed at my disposal. I would also like to thank Mrs. Rose
Patterson Briggs, B.A., of the United States Information Service,
American Embassy, London, for her willing assistance whenever
I have asked her for information.
Finally, I must thank the Legal Adviser to the Israeli Foreign
Office for having supplied me with copies of the letter of credence
and other documents relating to the appointment .of the first
Israeli Minister to the United Kingdom.
L. C. G.
University College, London,
April, 1951.
xv
TABLE OF CASES
A.L.B. v. Federal Ministry for Interior (1922) 91
Abubakurv. Sultan of Johore (1949) 42,234,252
Adams v. Mexico (1871/6) 316
Agency of Canadian Car and Foundry Co. Ltd. v. American Can Co. (1918)
98, 184, 230
Alabama, The (1872) 382
Allen Case (1799)
Alstbtter Trial (1947)
Amand, Re (No. 1) (1941)
(No. 2) (1942)
Ambrose Light, The (1885)
Amstelbank, N. V. v. Guaranty Trust Co. of N.Y. (1941)
Amy Warwick, The (1862)
Anderson v. N.V. Transandine Handelmaatschappij (1941)
Anghyra, The (1941)
Annette, The (1919)
Antelope, The (1 825)
Arantzazu Mendi, The (1939)
232-3,
90, 178
72
... 297-8
... 298
334-5, 346, 403
293, 294
... 377
. 254, 297, 298
... 254
Aroa Mines Case (1903)
103, 142, 217, 230, 235, 249, 251, 279
19
142-3, 231, 235, 236, 249, 251, 270, 277, 284,
293, 320-3
328
Auditeur Militaire v. Van Dieren (1919)
Austrian Pensions (State Succession) Case (1925)
Azazh Kebbeda Tesema v. Italy (1940)
B. v. Bank of Spain (Burgos) (1939)
Bacsborod Commune Case (1922)
Baiz, Re (1890)
Baldwin Case (1 841)
Baldy v. Hunter (1897)
Banco de Bilbao v. Sancha and Rey (1938) ... 230,235,276,
Banco de Espana v. Federal Reserve Bank of N.Y. (1939) ...
Bank of Ethiopia v. National Bank of Egypt and Liguori (1937)
292
100
65, 231, 262, 263
... 259
...64,292
237, 245
... 328
... 310-1
277, 293, 318-20
... 184, 248, 296
230, 235, 249-50,
276, 277 293 295 319
Banque Com. Siberie v. Vairon (1928) ' ..! '... ' 175
Banque de France v. Equitable Trust Co. (1929) 142,162
Banque Internationale de Commerce de Petrograd v. Goukassow (1925)
Barclay v. Russell (1797) 90,135,158,
Baxter Case (1871)
Bekker v. Wilcox (1923)
Bercholz v. Guaranty Trust Co., N.Y. (1943)
Bergen Prizes (1779)
Billig v. Handelsvennootschap onder Firma S. Einhorn's Sonne (1931)
Bissell v. Heyward (1877)
Blak's Estate, Re (1944)
Bluefields Controversy (1899) .,
Bochart v. Committee of Supplies of Corneux (1920)
Boguslawski v. Gdynia Amerika Line (1949/50) 173,
Bohemian Union Bank v. Administrator of Austrian Property (1927)
Boliott v. Masse (1920)
Bollack v. Societe Generate (1942)
British Shareholders of the Mariposa Co. (1926)
Buxhoeveden v. Estonian State Bank (1943)
C, fle(1941)
Campuzano v. Spanish Government (1938)
Central and South American Telegraph Co. v. Chile (1894)
Chae Chan Ping v. U.S. (1888)
173,
173
185
.. 328
.. 165
64
..54,337
57
.. 309
64
.. 316
.. 292
174, 181
91
..64,292
.. 299
.. 332
.. 161
.. 295
280, 296
.. 317
225, 246
xvn
XV1U
Table of Cases
Charkieh, The (1873)
Charlton v. Kelly (1913)
Cherokee Nation v. Georgia (1831)
Chiger v. Chiger (1926)
Chile, Rep. of v. City Bank (1891)
v. Rothschild (1891)
v. Royal Mail Steam Packet (1891)
China, Rep. of v. Merchants' Fire Ass. Co. of N.Y. (1929)
Chinn, Oscar Case (1943)
Chung Chi Cheung v. The King (1939)
Cie Generate des Asphaltes de France (1903)
Cie Nord de Moscou v. Phenix Espagnol (1928)
Citizenship (Czech Nationality) Case (1921)
(Czech State) Case (1921)
City of Berne v. Bank of England (1804) 135, 136, 137,
Civil Air Transport Inc. v. Chennault (1950)
Clark v. U.S. (1811)
Cloete, ite(1891)
Cohens v. Virginia (1821)
Colden Case (1862)
Compania Espanola v. The Navemar (1937)
Compania Minera Ygnacio Rodriguea Ramos v. Bartlesville Zinc Co. (1925)
316,317
Compania Naviera Sota Y Azner v. Ramon de la Sota (1938) 235
44, 137,
138, 230, 239.
120, 173, 181
244, 278
.. 246
.. 233
162
.. 136
.. 136
.. 136
138, 195
.. 433
.. 245
.. 385
168, 175
91
240,
182,
230,
91
242
235
313
245
225
342
253, 254
Confederate Note Case (1873)
Conserva, The (1889)
Consul of Spain v. La Conception (1819)
Corfu Channel (Merits) (1949)
Costa Rica v. Nicaragua (1916)
Cristina, The (1938)
Cuculla Case (1876)
Czechoslovak Occupation (Hungary) Case (1922)
State (Establishment) Case (1 925)
121
... 309
100, 233, 346, 382
...89,244
... 406
... 436
293, 320
147-8, 326, 330
...64,292
91
D'Aivassoff v. De Raedemaker (1927) .
Dart, The (1805)
Day and Garrison v. Venezuela (1889) .
De Bruijn, Re (1942)
De Forge Case (1880)
Delmas v. Insurance Co. (1871) ...
Del Vecchio v. Connio (1920) ...
De Mayenne v. Joutel (1926)
De Nimal v. De Nimal (1919) ...
Denny, The (1941)
Despav. U.R.S.S. (1931)
D'Esquiva v. Uhl (1943)
Deutsche Continental Gas-Gesellschaft v. Poland (1929)
De Wtttz v. Hendricks (1 824)
Digmeloff v. State Civil Officer (1928)
Diplomatic Immunities (German Foreign Office) Case (1926)
Divina Pastora, The (1819)
Divine Case (1808)
Doe d. Thomas v. Acklam (1824)
Dolder v. Bank of England (1805)
v. Lord Huntingfield (1805)
Doloret v. Herring and Co. (1823)
Dora, The (1919)
Dougherty v. Equitable Life Assurance Soc. of U.S. (1929/34)
Dreyfus Case (1901)
Dudley v. Folliott (1790)
Duff Development Co. v. Kelantan (1924)
42, 58, 230, 233,
... 164
. 230, 232, 313
... 145
... 297
... 316
... 309
291, 292
. 175, 181, 185
... 292
. 156-7, 161
137, 231
. 69, 233, 238
... 56, 92
... 390
... 162
... 231
230, 314
... 328
90, 150-1
. 135, 230, 240
. 136, 158, 230
... 312
142, 217, 230, 279
163, 164, 168,
175, 184, 185
117
... 158, 172, 309
234, 247, 248, 250,
251-2
Table of Cases xix
Eastern Carelia, Status (1923) 22
Eastern Carrying Ins. Co. v. Nat. Benefit Life and Ppty. Ins. Co. (1919) ... 149
Ekiu v. U.S. (1891) 225
Employers' Liability Ass. Corp. v. Sedgwick Collins and Co. (1927) 169, 173
Engelke v. Musmann (1928) 245,250
Estonian State Cargo and Passenger Line v. S.S. Elise (1948) ... 180, 182
Etat Russe v. Cie Ropit (1925) 168,169
Exchange v. M'Faddon (1812) 253
Falkoff v. Sugerman (1925) 165
Federazione Italiana Consorzi Agrari v. Commissariat of the Soviet Socialist
Rep. (1923) 168
Fenton Textile Association v. Krassin (1922) 285-6
First Russian Insurance Co. v. Beha (1925) 155
v. London and Lancashire Insurance Co. (1928) 173
Florida, The (1943) 161
Fogarty v. O'Donoghue (1926) 308
Folliott v. Ogden (1789) 158,168,172,309
Fong Yue Ting v. U.S. (1892) 225
Ford v. Surget (1878) 344,357
Foster v. Globe Venture Syndicate Ltd. (1900) 242,247
v. Nielson (1829) 242
Friederich Karl, The (1885) 403
Gagara, The (1919) 103, 140-1, 230, 234-5, 249, 279, 281, 283, 318
Gagniere and Co. v. Eastern Co. of Warehouses Ltd. (1921) 159
Galatioto v. Senes (1922) 64
Galston v. Hoyt (1818) 100,230,388
Gandara v. U.S. (1929) 402
Garvin v. Diamond Coal and Coke Co. (1923) 151
Gayon v. McCarthy (1920) 388
German Government v. Reparation Commission (1924) 57
German Interests in Polish Upper Silesia (1926) 92,178
Ghanv. Orloff(1926) 181
Gibel Zerjhon, The (1936) 360
Golovitschiner v. Dori (1923) 151
Graud's Estate, Re (1943) 161
Gross v. Gretchenko (1924) 151
Guaranty Trust Co. of N.Y. v. U.S. (1938) 98, 175, 183, 184, 237
Guastini Case (1903) 316
Gul Djema Case (1924) 143-4
H.E. v. Federal Ministry for Interior (1925) 91
Haakv. Minister of External Affairs (1942) 297
Haile Selassie v. Cable and Wireless Ltd. (No. 1) (1938) 235
(No. 2) (1939) 64,231,235,276,277,284,287,296
Hanauer v. Woodruff (1872) 309
Hanawi v. Credit Lyonnais (1925) 164
Hanna Case (1871) 328
Happy Couple, The (1805) 230,232,313
Harcourt v. Gaillard (1827) 90
Hausner v. Banque Internationale de Commerce de Petrograd (1924) 163, 168
Helena, The (1801) 192,232,244
Henderson v. Bise (1822) 312
Herani Ltd. v. Wladikawkuz Rly. Co. (1942) 169
Hilton v. Guyot (1894) 245
mtz,Exp. (1883) 237,245
Home Missionary Society Claim (1920) 328,373-4
Hopkins Claim (1926) 144,217,329,330-2
Horn v. Lockhart (1873) 309
Hornet, The (1870) 136
Hourigan, Re (1946) 71
B*
xx Table of Cases
Huby Freres v. Racke (1941) 295
Hudson v. Guestier (1808) 241
Inland Steel Co. v. Jelenovic (1926) 151,238
Irish Free State v. Guaranty Safe Deposit Co. (1 927) 308, 324
James v. Second Russian Ins. Co. (1924) 153-4,159,169,171
James and Co. v. Rossia Ins. Co. (1928) 155
Jansen Case (1868) 328
Jarvis Case (1903) 121,328
Jelinkova v. DeSerbouloff(1926) 162
Jellinek v. Levy (1940) 161
Johnson v. Briggs Inc. (1939) 67; 231
— - v. Twenty-One Bales (1832) 28
Joint Stock Co. of Volgakama Oil and Chemical Factory v. National City
Bank (1925) 155
Jones, Paul (1779) 353
Jones v. Garcia del Rio (1823) 312
v. U.S. (1890) 230,234,246
Josepha Segunda, The (1820) 230,314
Juffrow Maria Schroeder, The (1800) 246
Jupiter, The (No. 3) (1927) 173,177,181,248
Kamerun, The (1936) 360
Katz and Klump v. Yugoslavia (1925) 100
Kaufman v. Gerson (1904) 168
Kauhlen Case (1920) 291
Kawanawakoa v. Polyblank (1906) 253
Kawasaki Kisen Kabushiki Kaisha of Kobe v. Bantham S.S. Co. (1938)
236, 243, 249
Keene v. McDonough (1834) '... '291
Kennett v. Chambers (1852) 174,234,243,314
Kinder v. Everett (1823) 244,313
King v. Home Secretary, Exp. L. (1945) 68
King of the Two Sicilies v. Willcox (1850) 324
Klaudia K. v. B.F. (1925) 163
Kniaz Potemkin, The (1905) 404
Knox v. Lee (1870) 225
Kolbin v. Kinnear (1930) 173,179
Kolundjija v. Hanna Ore Mining Co. (1923) 151
Koninklijke Lederfabriek ' Oisterwijk ' N.V. v. Chase National Bank (1941) 293
Kotkas, The (1940) 160
Kuechenmeister, Ex p. (1947) 70-1,73,250,252
L.,Exp. (1945) 68
L. and D., Re (1941) 295
La Font v. Bigelow (1808) 241
Lafuente v. Llaguano Y Duranona (1938) 293
Lamont v. Travelers Ins. Co. (1939) 254
Land Oberoesterreich v. Gude (1940) 67, 231, 238~
Latvian State Cargo and Passenger S.S. Line v. Clark (1948) ... 161, 167, 231
Lazard Bros. v. Banque Industrielle de Moscou (1929) 173
v. Midland Bank (1930) 173,179,181
Lecouturier v. Rey (1910) 168
Lehigh Valley R.R.,£x/>. (1924) 98
Lehigh Valley R.R. Co. v. Russia (1927) 98, 175, 183, 185, 230
Lepeschkin v. Gosweiler (1923) 98
Lola, The (1900) 25
Lomonosoff, The (1921) 159
Lorentzen v. Lydden (1942) 297,298-9
Lotus, The (1927) 19
Lowinsky v. Receiver in Bankruptcy (1932) 98,104
Table of Cases xxi
Lucy H., The (1915) 388
Luther v. Sagor (1921) 159,160,168,172,173,174,179,180,181-2,
185, 195, 217, 230, 234, 235, 248-9, 251, 272, 275, 276, 283, 284, 319
M. and O., Re (1921) 91
Macedonian, The (1863) 353
McGrady and Wilson Case (1874) 328
Mcllvane v. Coxe's Lessee (1808) 90
McKenny Case (1876) 121,148,230,328
Magellan Pirates (1853) 404,405
Maison de Banque v. Thorsch (1938) 161
Manilla, The (1808) 230,232,313
Marchak v. Rabinerson, Re (1933) 175
Maret, The (1946) 161,231
Marika Eliadi Maternity Home Case (1942) 295
Marmatscheff, Re (1929) 175,185
Martinez v. Bechard and Mathieu (1939) 367
Mary, The (1814) 313-4
Mathot v. Longue (1921) 292
Matte and Ross v. Societe des Forges (1891) 136,232
Membership in the United Nations (1945) 37,215
Merilaid and Co. v. Chase National Bank of City of N.Y. (1947) 154, 157, 164,
168, 185, 243, 254
Mexico v. Fernandez (1923) 98,137,138
v. Hoffmann (1945) 254
Mighellv. Sultan of Johore (1894) 42,230,233,234,252
Mifier v. Ferrocaril del Pacifico de Nicaragua (1941) 254
Miller (U.S.) v. Mexico (1871) 146
Monaco v. Mississippi (1933) 253
Monteblanco Real Estate Corp. v. Wolvin Line (1920) 175
Montezuma, The (1877) 404
Morocco v. Laurens (1930) 75
Mortensen v. Peters (1906) 245
Moscow Fire Ins. Co. t. Bank of N.Y. (1939) 185
Uuii,Exp. (1921) 242,253
Murray v. Parkes (1942) 87,151,233
v. Vanderbilt (1863) 174
Nankivel v. Omsk All-Russian Government (1923) 142
Nanni v. Pace and the Sovereign Order of Malta (1935) 76
Naoum v. French West Africa (1919) ... 64,292
National Navigation Co. of Egypt v. Tavoularidis (1927) 140
Neely v. Henkel (1901) 102
Nereide, The (1815) 151,245
Nobel's Explosives Co. v. Jenkins and Co. (1896) 247
Nomis di Pollone v. Cooperative Garibaldi (1924) 168
Nuremberg Judgment (1946) 72
Oetjen v. Central Leather Co. (1918) ... 172, 174-5, 179, 182, 230, 242, 284, 286
Ogden v. Folliott (1790) 158,168,172,173,309
O'Neil v. Central Leather Co. (1915) 316-7,347
Oriental Navigation Co. Claim (1928) 272, 345-6, 385, 386, 400
Orinoco Asphalt Co. (1903) 385
Ortoli, Re (1942) 297,307
Ottoman Debt Arbitration (1925) 57,63,430
Paley Olga, Princess v. Weisz (1929) 173,181,275,284
Palmas Case (1928) 58
Pahs, The (1936/7) 360
Papadopoulos v. Monastery of Mount Sinai (1927) 164
Paquete Habana, The (1900) 25
Parker v. Davis (1870) 225
Parlement Beige, The (1880) 141, 250
Pelican, The (1809) 230,232,313
XX11
Table of Cases
Pelzer v. United Dredging Co. (1922)
Penza, The (1921)
People ex rel. Beha, Northern Ins. Co. (1930)
Perry v. Equitable Life Ass. Soc. of U.S.A. (1929)
Peru (Rep. of),Exp. (1943)
v. Dreyfus Bros. (1888)
v. Peruvian Guano Co. (1887)
Pesaro, The (1920)
Petrogradsky M.K. Bank v. National City Bank (1930)
Pinson Claim (1928)
Poland (Rep. of) v. Felsenstadt (1922)
v. Harajewica (1923)
v. Lentz and Hirschfeld (1924)
— v. Pantol (1922)
v. Ralski (1922)
v. Siehen (1926)
v. Weishole (1919)
Pope Case (1851)
Portena, The (1873)
Postula v. Liege (1919)
Prats v. U.S. (1871/6)
Prepbazhenski v. Cibrario (1922)
Privat v. Bertaux (1941)
Prize Cases (1862) 230, 231, 343-^1, 348, 357,
Prometheus, The (1906)
Public Prosecutor v. X (1940)
R. v. Bottrill, Ex p. Kuechenmeister (1947)
v. de Jager (1901)
v. Keyn(1876)
v. Koscuikiewicz (1948)
v. Ulatowski (1948)
R.S.F.S.R. v. Cibrario (1923)
Ramova, The (1941)
Reg. v. Jameson (1896)
Regent, The (1940)
Regnault v. Rousski-Renault Co. (1926)
Revenga v. Mackintosh (1824)
Ricaud v. American Metal Co. (1918)
Rigmor, The (1942)
Robson v. Sykes (1938)
Rogdai, The (1920)
Rose v. Himely (1808)
Roselius v. Karsten (1926)
Rossia Ins. Co. v. US. (1923)
Russian Bank for Foreign Trade, Re (1933)
Russian Commercial and Industrial Bank v. Comptoir
Mulhouse (1923)
Russian Government v. Lehigh Valley R.R. (1919) 98,
Russian Reinsurance Co. v. Stoddard (1925) ... 154-5, 156
Russian Roubles (Attempted Counterfeiting) Case (1919)
Russian Volunteer Fleet, Claim of (1925)
v. U.S. (1930)
... 152
. 102, 137, 230
... 150
... 173
... 254
. 146, 230, 275
. 146, 230, 273
... 254
... 155-6
148, 398
...91,177
91
92
91
... 292
...64,292
91
... 328
... 404
... 292
328, 344-5, 374
... 137
... 295
376-7, 384, 394
19
... 295
70-1, 73, 250, 251
... 248
19
173-4, 184
173-4, 184
137-9,150,171,230
... 161
... 389
... 160
... 246
244, 313
175, 230
... 298
347, 378
... 137, 230, 237, 242
230, 240, 242, 245, 246
98
165
173^t
d'Escompte de
169, 173
171, 184, 230, 234, 237
,161,165,230,239,248
99
98
165
Salimoffand Co. v. Standard Oil Co. of N.Y. (1933)
Salvador, The (1870)
Sambiaggio Case (1903)
Santissima Trinidad, The (1822) ...
Sapphire, The (1870)
Savini, Re (1927)
Schinz v. High Court of Zurich (1926)
Schultz Case (1871)
Scotia, The (1871)
156, 157, 159-60, 161, 171,
175, 196, 234, 237, 238
... 389
... 327-8
140, 239, 339
...98,136
... 297
... 164
... 328
,.. 19
Table of Cases xxiii
Sendeja, The (1937) 293,320
Shenandoah, The (1865) 404
Shipoff v. Elte (1931) 98,104
Signe, The (1941/3) 160-1
Silva Case (1875) 328
Skewry's Estate, Re (1944) 64
Sliosberg v. N.Y. Life Ins. Co. (1927) 163,164,165,168,171
Societe Vairon v. Banque de Commerce de SibSrie (1929) 168
Sokoloffv. National Bank of N.Y. (1924) 153,154,156,159,160,
163, 170, 230, 274
Solgry, The (1942) - 298
Soviet Government v. Ericsson (1921) 137
Soviet Marriages in Hungary Case (1925) 162
Spain v. Chancery Lane Safe Deposit Ltd. (1939) 98-9,184
Spanish Government v. Campuzano (1938) 231
Spanish Republican Government (Security for Costs) Case (1938) ... 231,360
Speyers v. U.S. (1871/6) 316
Sprott v. U.S. (1874) 309-10
Stamps Counterfeiting Case (1920) 91
Statham v. Gaekwar of Baroda (1912) 252
Sullivan v. State of Sao Paulo (1941) 253,254,255
Tallinna Laevauhisus Ltd. v. Estonian State Shipping Line (1946) ... 167,169,
182, 235, 250, 259, 284
Tartar Chemical Co. v. US. (1902) 247
Tatem v. Gamboa (1938) 231,371,378
Taylor v. Barclay (1828) 230,234,242,247
Tcherniak v. Tcherniak (1928) 163
Terrazas v. Donohue (1925) 175
v. Holmes (1925) 175
Texas v. White (1874) 309
Thomas v. Acklam (1824) 90,150-1
Thompson v. Powles (1828) 230,312
Thorington v. Smith (1868) 309,344
Three Friends, The (1897) 230,388,400,401-2
Tinoco Arbitration (1923) 111, 121, 126, 145, 146, 147, 148, 149, 178, 223, 345
Tobolsk, The (1921) 102,137,230
Trent, The (1862) 217
Tropic Wind, The (1861) 377
Tsourkanienko v. Battier (1923) ... .: 151
U.R.S.S. v. Intendant General (1928) 168
U.S. v. Baker (1861) 403
v. Bank of N.Y. and Trust Co. (1936) 184
v. Belmont (1937) 175,184,185,225,243,254
v. Curtiss-Wright Export Corp. (1936) 225,230,231
v. Hutchings (1817) 90
v. LaJeune Eugenie (1822) 28
v. McRae (1869) 310,316,324,325
v. National City Bank of N.Y. (1950) 139
v. N.Y. Trust Co. (1946) 175,243,254
v. Pacific Railroad (1887) 344,392
v. Palmer (1818) 230,239,314,388
v. Pink (1942) 175,185,231,243,254,266,274
v. Prioleau (1865) 310,316,324-5
v.Rice (1819) 316
v. Smith (1820) 403
v. Trumbull (1891) 175,230,234,401
ex rel. d'Esquiva v. Uhl (1943) 69,233,238
Zdunic v. Uhl (1941) 67,238
U.S.S.R. v. Belaiew (1925) 98
v. Luxembourg and Saar Co. (1935) 213
. v, Onou(1925) .., 98
XXIV
Table of Cases
Underhill v. Hernandez (1897) ... 140, 172, 174, 179, 182, 230, 232, 345, 393
United Nations, Injuries in Service of (1949) 22,92-3,305,427
Virginia Antoinette, The (1 871/6)
Vladikavkazsky Rly. Co. v. N.Y. Trust Co. (1934)
Vseobtchaia Stroitelnaia Kompania v. Smit (1927)
Walsh Case (1868)
Ware v. Hylton (1796)
Weber v. U.S.S.R. (1942)
Werenjchik v. Ulen Contracting Corp. (1932)
Werfel v. Zionostenska Banka (1940) ...
West Rand Central Gold Mining Co. v. The King (1905)
West Russian S.S. Co. v. Sucksdorff(1920)
Western Maid, -The (1922)
White, Child and Beney Ltd. v. Eagle Star and British
(1922)
v. Simmons (1922) ...
Wiborg v. U.S. (1897)
Williams v. Bruffy (1877) 172,174
v. Suffolk Ins. Co. (1839)
Wright v. Nutt (1788)
Wulfsohn v. R.S.F.S.R. (1922) 89,
Wyman Case (1876)
X, .Re (1923)
X v. Levit and Walter (1939)
Yrissari v. Clement (1826)
Zaldwar Case (1882)
Zamora, The (1916)
Zarine v. Owners (1941) ...
Zdunic v. Uhl (1941)
316
168, 171, 175, 185
169
328
19,90
140
... 152,239,248
238
19,' 26, 245, 326
175
34
Dominions Ins. Co.
180, 230, 246, 249, 276, 319
... 180,181-2,230,246
338,402
179, 309, 327, 344, 357, 394
230,234
158,172,309
141, 142, 143, 159, 171, 239
328
91
... 161
89, 244, 313
... 328
... 246
... 161
...67,238
TABLE OF TREATIES
1873 Anglo-American Treaty 44,45,90,151,158,173
1802 Peace of Amiens 107
1809 Anglo-Spanish Treaty 106
1814 Treaty of Madrid 106,337
1825 Anglo-Portuguese Treaty 44,45
1831 Treaty of London 208,265
1856 Continental Treaty 435-6
1856 Declaration of Paris 412,424,427,438
1856 Treaty of Paris 208
1862 Anglo-French Treaty 423
1863 Scheldt Convention 207
1865 International Telegraphic Convention 207
1868 United States — Mexican Convention 328
1871 Franco-German Peace Treaty 66
1871 Protocol of London 21
1871 Treaty of Washington 326,376
1878 Treaty of Berlin 222,266,429
1885 General Act of Berlin 201,265
1890 Anglo-German Treaty 423
1896 Franco-Russian Treaty 151
1905 Hague Convention on Civil Procedure 104
1905 International Institute of Agriculture Convention 211
1907 Central American Treaty of Peace and Amity 108-10,123
1907 Hague Convention IV 28,71,292,294,300,308,320
1910 Copyright Convention 206
1910 Trade Marks Convention , 206
1915 Sino- Japanese Treaty 412
1917 Lansing-Ishii Agreement 412
1918 Armistice Convention 178
1918 Protocol of Spa 178
1919 Peace Treaties :
St. Germain 56,57,67,91,102,266
Trianon 57,102
Versailles 51,56,67,92,100,197,201,266
Covenant of the League of Nations 65, 210, 211-5, 222, 260, 379,
417-8, 421, 422, 425, 426, 427, 429, 431, 433, 434, 437, 438-9
1919/45 Statute of the World Court 28-9,210,223
1920 Anglo-Soviet Agreement 194
1920 Franco-Soviet Agreement 194
1920 German-Latvian Convention 267,287
1920 Soviet-Hungarian Agreement 194
1920 Treaty concerning Spitzbergen 205-6
1920 Treaty of Sevres 205
1921 Anglo-Soviet Trade Agreement 79,193,285-6
1921 Persian-Soviet Treaty 193
1921 Turco-Soviet Treaty 193,417
1921 Treaty of Riga 222
1922 Geneva Protocol 67
1922 German-Soviet Treaty 193
1922 Nine-Power Treaty 419
1 923 Convention on Regime of the Straits 207
1923 Danish-Russian Preliminary Agreement 285,288
1923 Washington Treaty of Peace and Amity 108-10
1924 Italo-Soviet Treaty 193
1924 Universal Postal Convention 202
1925 Convention on Inland Navigation 202
XXV
XXVI
Table of Treaties
1925
1926
1926
1928
1928
1928
1928
1929
1929
1929
1929
1931
1932
1932
1933
1933
1934
1935
1936
1936
1937
1940
1941
1942
1943
1945
1945
1945
1945
1946
1946
1946
1948
1948
1949
1949
202,
Locarno Treaties
International Sanitary Convention
Treaty of Paris concerning Belgium
Convention for Protection of Literary and Artistic Work
Havana Convention on Civil Strife
Kellogg Pact 203, 205, 206, 207, 208-10, 412, 417, 421, 422, 423, 426,
429, 430, 431, 438-9
Sino- American Treaty of Commerce 44
419
209
420
206
335, 404, 405
Convention on Suppression of Counterfeiting Currency
Geneva (Prisoners of War) Convention
Lateran Treaty
Universal Postal Convention
Convention on Narcotic Drugs . . .
International Air Sanitary Convention
International Telecommunications Convention
Montevideo Convention on Rights and Duties of States
Saavedra Lamas Anti-War Treaty
Universal Postal Convention
Soviet-' Manchukuo ' Agreement
Buenos Aires Convention on Existing Treaties
Nyon Agreement
Montreux Capitulations Convention
Havana Declaration
Atlantic Charter
Declaration of United Nations
Moscow Declaration
Act of Chapultepec
Berlin (Potsdam) Declaration
Charter of the United Nations
Yalta Protocol
Constitution of the World Health Organization
United States — Philippine Treaty
United States — Yemeni Treaty
Bogota Final Act
Charter of the Organisation of American States
Occupation Statute (Germany) ...
United Kingdom— West Germany Sterling Agreement
... 207
68
76
206, 207, 211
... 209
... 207
207, 211
38, 55, 62, 84,
267, 414, 417
417
204,207
194
417
347-50, 377, 405
221
417
111
111
262
417
252
203, 208, 210, 215, 222, 223, 379, 401,
418-9, 421, 422, 426, 427, 430, 436, 437, 438
203, 264
.. 211
67, 69,
70,"72:
46,195
267
116, 128
31, 32, 33, 77, 129
72, 73, 74
73
ABBREVIATIONS
A.J.I.L. American Journal of International Law, 1907-.
Annual Digest. Annual Digest and Reports of Public International Law Cases'
(1919-), 1929-.
B.F.S.P. British and Foreign State Papers, 1812—.
B.Y.I.L. British Year Book of International Law, 1921-.
Cases. Dickinson, E. D., A Selection of Cases and Other Readings on the Law
of Nations, 1929.
Cobbett. Cobbett, Pitt, Cases on International Law, 1937-1947.
Col.L.R. Columbia Law Review, 1901-.
Dana's Wheaton. Wheaton, H., Elements of International Law, 1866.
De Martens.
R.T. (Cussy). Martens, C. de, and Cussy, F. de, Recueil de Traites.
R.T. Martens, G. F. de, Recueil de Traites.
N.R. — and others, Nouveau Recueil de Traites.
N.S.R. — — Nouveau Supplement au Recueil de Traitis.
N.R.G. — — Nouveau Recueil General de Traites.
Grotius Transactions. Transactions of the Grotius Society, 1916—.
H.L.R. Harvard Law Review, 1887-.
Hackworth. Hackworth, G. H., Digest of International Law, 1940-1944.
Hague Recueil. Recueil des Cours, Academie de Droit International de La Haye,
Hall. Hall, W. E., International Law (ed., Higgins, A. P.), 1924.
Hudson. Hudson, M. O., Cases and other Materials on International Law, 1936.
Hyde. Hyde, C. C. International Law, Chiefly as Interpreted and Applied by the
United States, 1945.
I.C.J. International Court of Justice.
J.C.L. Journal of Comparative Legislation and International Law, 1896-.
J.D.I. Journal de Droit International, 1874-.
Keith's Wheaton. Wheaton, H., Elements of International Law (1929-44).
L.o.N., Off.J. League of Nations, Official Journal, 1920-1946.
L.o.N., T.S. League of Nations, Treaty Series, 1920-1945.
L.Q.R. Law Quarterly Review, 1885-.
Lauterpacht. Lauterpacht, H. ^Recognition in International Law, 1947.
Le Fondement. Brierly, J. L., Le Fondement du Caraclire Obligatoire de Droit
International, 1928.
M.A.T. Mixed Arbitral Tribunals.
M.L.R. Modern Law Review, 1937-.
Mich.L.R. Michigan Law Review, 1902-.
Moore. Moore, J. B.
Digest. A Digest of International Law, 1906.
International Arbitrations. A History and Digest of the International Arbitra-
tions to which the United States has been a Party, 1898.
Oppenheim. Oppenheim, L., International Law (ed., Lauterpacht, H.), Vol. 1,
7th ed., 1948; Vol. 2, 6th ed., 1944.
P.C.I.J. Permanent Court of International Justice.
Pari. Deb. Parliamentary Debates.
Proceedings. Proceedings of the American Society of International Law, 1908-.
R.G.D.I.P. Revue Generate de Droit International Public, 1894—.
R.I. Revue de Droit International et de Legislation Comparee, 1869-.
R.I. (Paris). Revue de Droit International, 1927-.
Resolutions. Resolutions of the Institute of International Law.
Schwarzenberger. Schwarzenberger, G., International Law, vol. 1, 1949.
Smith. Smith, H. A., Great Britain and the Law of Nations, 1932-1935.
Treaties. Malloy, W. M., Treaties, Conventions, International Acts, Protocols and
Agreements between the United States and Other Powers, 1910-1938.
U.S. For. Rel. Papers Relating to the Foreign Relations of the United States, 1870-.
Wharton. Wharton, F., Digest of the International Law of the United States, 1886.
Yale L.J. Yale Law Journal, 1891-.
xxvii
INTRODUCTION
INTRODUCTION
In the last analysis, the question of international recognition is
but a reflection of the fundamental cleavage between those who
regard the State as the ultimate source of international rights and
duties and those who regard it as being under a system of law
which determines its rights and duties under that law. According
to the former view, as a State cannot be bound by any obligation
except with its own consent, a new State or government or
insurgent body cannot be allowed to exercise rights against
existing States unless it has been recognised by them. It is
therefore argued that recognition creates the legal status of the
body recognised vis-a-vis the recognising State.
Such a view may serve the purpose of Machiavellian statesmen
who put national interests above all others. It provides them with
a justification for ignoring the existence of other entities and
denying them rights under international law. But international
law, like any other system of law, cannot be divorced from fact.
The purpose of international law is to regulate the conduct of
political entities in harmonious co-existence within a community.
Such a purpose cannot be achieved if one of the entities should
be free to liberate itself from the restraints of law with respect to
other entities by simply refusing to recognise them. If an entity
in fact exists, the refusal to treat it in accordance with inter-
national law would incur the same risks and perils as would be
incurred had the treatment been refused to a recognised entity.
\jhe source of rights and duties of an entity in international law
is the fact of its actual supremacy within a specified area of
territory over a specified portion of humanity, which enables it to
exert physical pressure on all those who may choose to disregard
its rights. This fact is the basis of international law) The con-
stitutive theory, in closing its eyes to this fact, indulges in the
illusion that the rights of a Power, as long as it is not recognised,
may be infringed with impunity. Such a theory is highly
detrimental to international harmony and would defeat the
purpose of international law.
The contrary theory is to regard the rights and duties of new
3
v'
4 Introduction
States or governments or belligerent communities vis-a-vis other
States as being determined by the fact of their actual existence.
[When they exist in fact, their rights and duties flow automatically
through the operation of the law. Recognition by a foreign State
signifies the intention of that State to treat the new entities
according to law, and to deal with them in their recognised
capacity. In the case of a new State or government, it would,
moreover, entail the establishment of political relations with themT]
But non-recognition does not give the foreign State the right to
treat the unrecognised Power as if it were beyond the pale of
international law.CAs far as international law is concerned, the
recognition is not creative, but declaratory. This applies equally
to the recognition of States, governments and belligerent
communitiesTI
The theory which regards recognition as a conferment of rights
is not so consistently applicable to all the three situations. Even
in the question of State recognition, the constitutive view is con-
fronted with theoretical difficulties. For instance, it completely
fails to explain how the first States came into existence. In
assuming that recognition is binding only inter partes, it is forced
into the absurd conclusion that States can exist only in a relative
sense. This consequently makes it difficult to explain how a '
body not itself existent in the eyes of another can perform an
act which creates the legal personality of that other body.
The fundamental assumption of the constitutive view that
the international community is in the nature of a closed club, to
which new entities can only be admitted through recognition, is
itself erroneous. It is certainly untrue to-day that any portion
of humanity can be treated as beyond the protection of
international law.
^By assuming that a State, once having satisfied certain
objective tests, ipso facto becomes a person in international law,
the declaratory theory is spared the logical absurdities which
embarrass constitutive writers. The acceptance of an objective
test is, indeed, a strong argument for the view that a State acquires
legal personality through the operation of the law, and not
through recognition. The practice of States to regard recognition
as retroactive can only be explained by the fact that the Power
Introduction 5
recognised has always had existence prior to the recognition, and
independently of itT?
The impossibility of the traditional constitutive theory has
driven some of its adherents to seek for modifications of the
theory. But these modifications are either inadequate to remedy
the defects of the traditional theory, or approximate to the
declaratory view so closely that they are practically indistinguish-
able from it.
The practice of States to accord premature recognition or to
withhold recognition in consideration of political advantages,
though often resorted to, has met with universal condemna-
tion. The British and United States Governments have repeatedly
declared it to be their fixed policy to recognise new States once
they are in fact established.
As regards the recognition of governments, the declaratory
principle applies with equal cogency. In the past, departures
from this principle have been caused by considerations of
legitimacy, either dynastic or constitutional. These, fortunately,
have now ceased to be of practical importance. [The sole criterion y
whether a government is entitled to represent a State inter-
nationally is the fact of its actual paramountcy in the country.
Considerations such as the willingness to fulfil international
obligations may influence the decision of other States whether
or not to enter into relations with it. But this does not entitle
other States to deny it the right to govern. All that a foreign
State can do is either to abstain from any intercourse with it, or
to employ the ordinary measures of international pressure after
the establishment of normal relations/
/An examination into the modes by which recognition may be v
accorded also furnishes convincing proofs that recognition does
not constitute the personality of the State or its governmental
capacity. For, apart from unilateral declaration, which is most
uncommon, any other mode of recognition must presuppose the
legal capacity of the party recognised. The test whether an act
constitutes recognition is whether it signifies the intention of the
recognising State to enter into political relations with the body
recognised. For this reason, some acts, although they may pre-
suppose the legal existence of a political entity, may not
constitute recognition, so long as they do not require the plenitude
6 Introduction
of relations normally existing between States. This explains what
appears to be the contradictory conduct of States which, while
entering into certain relations with a new entity, yet persistently
maintain that no recognition is being accorded^/
Although recognition does not constitute the legal status or
capacity of the new Power, it nevertheless has very important
political consequences). Recognition by a large number of
powerful States tends to give stability to the regime and to assure
its political position among nations. It is also strong evidence
of the existence of the new regime. Such evidence is generally
conclusive upon the organs of the recognising State, in particular,
upon courts of those nations which adopt the doctrine of judicial
self-limitation. In view of this political importance of recognition
and the possibility of abuse, it would be desirable that recogni-
tion be accorded by means of collective action.
The above principle applies mutatis mutandis to the
recognition of belligerency. Here, through recognition, a State
declares the existence of a body which is so organised that it is
capable of exercising the rights and fulfilling the duties Of the law
of war. These rights and duties flow directly from the existence
of the organised Power and the fact of the civil war. The
recognising State, by means of recognition, assumes the rights
and duties incident to the fact of war. The consequences of a
refusal to assume such rights and duties would be the same as
in the case of a war fought between independent States. The
practice of Great Britain and the United States fully supports
this view.
The recognition of belligerency creates special difficulties
for those who regard belligerent bodies as possessing no
legal personality. Such a view runs counter to the principle
that civil wars may be regulated by the same rules as those
obtaining in international wars. As a matter of fact, a belligerent
community, to become capable of exercising the rights of war,
must necessarily be so organised as to be able to exercise the
powers of civil government. The practice of States is generally
to concede to it the validity of its acts of internal government.
English courts in recent years have even gone so far as to regard
it as a sovereign State for practical purposes.
As the status of belligerency is acquired through the fulfil-
Introduction 7
ment of certain conditions of fact, a body of men in revolt which
does not fulfil such conditions does not constitute a belligerent
community, and therefore does not possess the legal status
attached to it. The 'recognition' of insurgency has no effect
upon the legal capacity of the insurgent body. It merely signifies
that the fact of the insurrection is taken notice of by the foreign
State, which would accordingly take measures of precaution and
for the better fulfilment of its international obligations towards
the troubled State.
[Internationally, therefore, recognition does not affect legal u
rights and duties of the parties. An international tribunal would
without hesitation adjudge to the parties concerned such rights
as they would be entitled to, according to their actual existence,
irrespective of whether one party has recognised the other?
<\For a national court, the question may be different. In ^
countries which adopt the doctrine of judicial self-limitation, the
courts are precluded from inquiring into the legality of the acts
of the political department in accordance with the standard of
international law. They apply the principles of international law
only upon the assumption of the international validity of the acts
of their governments. They are bound to accept as conclusive
the statements of the government as regards international facts.
In some countries, the government is even allowed to determine
the question of lawT^) As the government is generally guided by
considerations of policy, the courts have often found themselves
in the embarrassing predicament of having either to shut their
eyes to facts or to act in disagreement with the government.
Moreover, the government certificates are often couched in terms
deliberately ambiguous. The result is that the law is thrown into
confusion and uncertainty. ^Efieir embarrassing experience in y
cases concerning the Soviet Union has led United States courts
and lawyers to adopt the more realistic course of giving effect to
internal acts of unrecognised governments. It may be suggested
that, with regard to private litigation, the ordinary principle of
private international law which regards foreign law as a question
of fact is quite adequate for the solution of the question. The
strict adherence to the doctrine of judicial self-limitation to the
extent of ignoring the internal acts of unrecognised Powers may
inflict unnecessary hardships upon individuals and is contrary to
the requirements of justice."^
8 Introduction
(^Recognition is both a declaration of fact and an expression of
the intention to enter into political relations with the Power
recognisedV As a declaration of fact, it is both irrevocable and
incapable of being subject to conditions; as an expression of the
intention to enter into political relations, it is both revocable and
capable of being subject to conditions. But in the latter case,
revocation of recognition does not affect the legal existence of the
recognised entity. Belligerent recognition cannot be conditional.
The revocation of belligerent recognition is tantamount to taking
sides in the struggle.
There has been some confusion regarding the expressions
de jure and de facto recognition. Much of the discussion on that
subject is beside the point, as those using the terms are seldom
using them in the same meaning. It is suggested that a ' de jure
(or de facto) recognition ' is indicative of the degree of the relation
the recognising State intends to enter into with the recognised
Power, and that ' recognition as a de facto government ' indicates
that the body recognised is a partial, as distinguished from a
general, government. The indiscriminate use of the terms has led
to the admission to the full status of statehood of bodies which
are merely belligerent communities or foreign military occupants.
Some writers, in advocacy of the declaratory principle, have
sought to apply the same logic to acts in breach of international
law. They argue that, since the recognition of States, govern-
ments and belligerent communities is based upon the fact of their
existence, a situation of fact brought about by a breach of law
ought similarly to be recognised once it has become a fait
accompli. It is submitted that the analogy does not exist. In the
recognition of States, governments and belligerent communities,
the situation of fact is not itself contrary to law. On the con-
trary, it is envisaged by international law, which gives it legal
effect when it arises. But an act which is illegal cannot bring
about legal consequences beneficial to the wrongdoer. A legal
order cannot be maintained if every violation of the law immedi-
ately becomes a source of rights. The only ways by which an
illegal act may be validated are through the recognition by the
injured party or through the modification of the legal order
itself. In advancing this argument, it is assumed that there exists
in the international community a ' higher law ' by which the
Introduction 9
legality of acts of States can be tested, and that the international
legal order, like any other legal order, is not immutable, but is
subject to change in conformity to vital changes of fact, though
prior to such a change pre-existing rights are protected by the
force of the society in support of that legal order. Such assump-
tions, it is believed, are entirely in consonance, with the basic
assumptions of the declaratory theory of recognition with regard
to States, governments and belligerency.
PART ONE
RECOGNITION OF STATES
CHAPTER 1
THE RECOGNITION OF
STATES AND THE OBLIGATORY CHARACTER
OF INTERNATIONAL LAW
ALTHOUGH the problem of the recognition of States has been
the most discussed matter in the field of recognition, the
question of recognition arises, in reality, in every vicissitude of
State life. Whenever there is an outbreak of civil war, a change
of government or a transfer of territory or other important
changes, the question of recognition is immediately involved.
Indeed, every public act of a State, whether legislative, administra-
tive or judicial, which may come within the purview of a foreign
State, depends for its validity within that foreign State upon the
latter's recognition of it. In this broad sense, which is the only
correct sense whereby the multifarious aspects of international
life in which recognition comes into play can be shown in their
proper perspectives, international recognition is a matter of every-
day occurrence, although only the smallest fraction of it has
attracted public attention. This truth is intelligible only when we
realise that, in by far the greater number of cases, recognition is
accorded as a matter of course, when conditions of international
law have been met. In such cases, recognition as a distinct act
is concealed from the public eye by the very reason of its
obviousness.
Bearing this in mind, we shall limit our discussions to the more
spectacular aspects of recognition, namely, the recognition of
States, governments, belligerency and illegal acts. Among these,
the recognition of States is of the most fundamental importance,
for the controversy drives deep into some basic assumptions of
international law.
§ 1. The Rival Doctrines of Recognition
The question of the international recognition of States has always
been dominated by the controversy between two schools of
13
14 Recognition of States
thought, namely, the constitutive and the declaratory schools.
The principal tenet of the former school, as set forth by
Oppenheim, is that ' A State is, and becomes, an International
Person through recognition only and exclusively V The expon-
ents of this view include Triepel,2 Le Normand,3 Liszt,4
Lawrence,5 Wheaton,' Anzilotti,7 Professor Kelsen,8 Redslob,'
Bluntschli,10 Professor Lauterpacht,11 [and it seems Dr. Schwarzen-
herger, who bases his attitude on the practice of the Permanent
Court of International Justice "].
The opposing theory is stated by Hall as follows :
'States being the persons governed by international law,
communities are subjected to law . . . from the moment, and from
the moment only, at which they acquire the marks of a State.' "
In other words, /whenever a State in fact exists, it is at once
subject to international law, independently of the wills or actions
of other States. The act of recognition declares the existence
of that fact and does not constitute the legal personality of the
State^J Prominent among the adherents of this view are Vattel,"
1 Oppenheim, vol. I, p. 121. This theory, it may be remarked, has no appli-
cation in the recognition of governments and belligerent communities, since,
according to Oppenheim (ibid., pp. 113-4), international personality is the
exclusive attribute of States. Moreover, since, according to the constitutive
theory, recognition is both the necessary and the sufficient condition for
the full enjoyment of international rights by the State, recognition of the
government of an already recognised State would seem to be theoretically
redundant. Although Oppenheim asserts the essential similarity of the
principles governing the recognition of States, governments and belligerency
(ibid., vol. II, p. 197), it appears that the same treatment is impossible under
the constitutive theory. See ibid., vol. I, p. 125, as to the principles regarding
the recognition of governments. Le Normand admits that the constitutive
theory does not apply to the recognition of governments, as it confers no
juridical value (Le Normand, La Reconnaissance Internationale et ses
Diverses Applications, 1899, p. 268).
2 Triepel, Droit International et Droit Interne, 1920, p. 101.
3 Le Normandj op. cit., p. 9.
4 Liszt, Le Droit International, 1927, pp. 52-3.
5 Lawrence, Principles of International Law, 1937, p. 82.
^Dana's Wheaton, Pt. I, Ch. II, s. 21.
'Anzilotti, Cours de Droit International, 1929, vol. I, p. 192.
8 Kelsen, Recognition in International Law, Theoretical Observations, 35
A.J.I.L. (1941), pp. 605, 608-9; but see below, p. 15, n. 21.
9 Redslob, La Reconnaissance de I'Etat comme Sujet de Droit International,
13 R.I. (Paris), 1934, p. 429.
10 Bluntschli, Droit International Codifie, 1870, s. 29.
11 Lauterpacht, p. 75. The same view is also held by Hegel and Jellinek, see
Lauterpacht, p. 38.
12 [Schwarzenberger, International Law as Applied by International Courts and
Tribunals, 1949, chapter 7, and A Manual of International Law, 1950, p. 27.1
13 Hall, pp. 19-20.
"Vattel, Law of Nations, 1758, Bk. I, Ch. I, s. 4.
Obligatory Character of International Law 15
Westlake,15 Moore," Professor Brierly,17 Williams,18 Lorimer,13
Professor Scelle ao and many others.21 It is also the view adopted
by the Institute of International Law.22
There is a further group of writers who draw the distinction
between the possession of international personality by a State and >.
the exercise of international rights by that Stated] The following
passage from Rivier may be regarded as representative :
' U existence de l'£tat souverain est independante de sa recon-
naissance par les autres etats. Cette reconnaissance est la
constatation du fait accompli, et e'en est aussi I' approbation.
C'est la legitimation d'une situation de fait, qui se trouve desormais
fondee en droit. . . . La reconnaissance implique un engagement
formel de respecter dans la personne nouvelle du droit des gens
les droits et les attributions de la souverainete. Ces droits et
attributions lui appartiennent independamment de toute recon-
naissance, mais ce n'est qu'apres avoir ete reconnue qu'elle en aura
Yexercice assure. Des relations politiques regulieres n'existent
qu'entre Etats qui se reconnaissent reciproquement.' "
Similar views have been voiced by Fauchille,21 Fiore,25 Twiss,"
15 Westlake, International Law, vol I, 1904, pp. 49-50.
16 Moore, Digest, vol. I, pp. 18-19.
"Brierly, Law of Nations, 1949, p. 123; same, Le Fondement, p. 19; same,
Regies Generates du Droit de la Paix, 58 Hague Recueil, 1936.
18 Williams, Aspects of Modern International Law, 1939, pp. 26-7.
19 Lorimer, Institutes of the Law of Nations, 1883, vol. I, p. 104.
20 Scelle, Precis de Droit des Gens, 1932, vol. I, p. 98.
21 These include Halleck, International Law, 1861, p. 75; Phillimore, Commen-
taries upon International Law, 1879, vol. II, p. 20 et seq.; Cobbett, vol. I,
pp. 31-2; Baty, Canons of International Law, 1930, p. 204 et seq.; Erich,
La Naissance et la Reconnaissance des Etats, 13 Hague Recueil, 1926, p. 431,
at pp. 457-61; Nys, Le Droit International, 1912, vol. I, p. 74; same, La Doc-
trine de la Reconnaissance des Etats, 35 R.I., 1903, p. 292; Jaffe, Judicial
Aspects of Foreign Relations, 1933, p. 79; Kelsen, Theorie Generale du Droit
International Public, 42 Hague Recueil, 1932, p. 121. Professor Kelsen's
view has now been modified (see above, n. 8). Goebel accepts the declara-
tory view {Recognition Policy of the United States, 1915, p. 45), but adds
a qualification that recognition has a ' definite juristic meaning ' in that the
recognising State ' will recognise to be binding upon itself those obligations
which the new State has assumed ' {ibid., p. 61). See contra, below,
pp. 37-8, 61-2.
22 Article 1 of the Resolution of 1936, 30 A.J.I.L., 1936, Supplement, p. 185.
See also Project VI, Article 2 of the American Institute of International
Law, 20 A.J.I.L., 1926, Supplement, 310; Project II, Article 5 of the Inter-
national Commission of Jurists, 22 A.J.I.L., 1928, Supplement, p. 240.
23 Rivier, .Principes du Droit des Gens, 1896, vol. I, p. 57.
24 Fauchille, Traite de Droit International Public, 1921, vol. I, Pt. I, p. 306.
25 Fiore, Droit International Codifie, 1890, pp. 93-4, 96. His arguments are
somewhat confused. While maintaining that a State is subject to inter-
national law as soon as it has juridical existence, he goes on to say that
such a State has only an ' abstract personality ', incapable of rights and
duties, unless recognised, or unless it enters into de facto relations with
other States.
"Twiss, Law of Nations, 1875, vol. I, pp. 19-20.
16 Recognition of States
De Louter" and Professor Hyde." (rhis distinction does not seem
to be very helpful. It is difficult to imagine an entity possessing
full legal personality and yet having its rights remain unexercis-
able until recognised by some other entity.^,! Personality under
such a disability would be devoid of meaning. There has been
some doubt whether these writers are not in fact advocating a
' constitutivist ' view.30 In view of the clear statement of Rivier
that the existence of a sovereign State is independent of recogni-
tion, this doubt is probably unjustified./~The most important point
of departure between the constitutive and the declaratory theories
lies in the question whether the legal personality of a State exists
prior to recognition, that is to say, whether the unrecognised
State can be a subject of international law, having capacity for
rights and duties?? On this point, there is no doubt that these
writers are in support of the declaratory theory.31
fThe non-exercise of rights does not necessarily imply the lack
of capacity,32 and non-recognition does not prevent the exercise
of rights.33 To enter into treaties or diplomatic relations is neither
an absolute right nor an absolute dutyjA State may refuse to
enter into diplomatic relations with even a well-established State
without thereby denying the latter's personality. A well-estab-
lished State may also choose not to exercise certain of its rights,
without denying itself personality. It is not believed that the
State of Russia had lost its personality as the result of the sever-
ance of practically all diplomatic relations with other States during
the early stage of the Soviet regime. ^Rie establishment of
diplomatic relations is a super-addition to international person-
ality, and not the essence of iCi For this reason, those writers
27 De Louter, Droit International Positif, 1920, vol. I, p. 218.
28 Hyde, vol. I, p. 148.
29 See criticisms on this point in Jaffe, op. cit., pp. 88-9; Le Normand. op cit
p. 88.
30 Fauchille and Moore have been classified among constitutivists by Erich
(loc. cit., p. 460), and Fiore by Goebel (op. cit., p. 55). The last-mentioned
classification was objected to by.Jaffe (op. cit., p. 88). Verdross thinks that
if the exercise of external competence of a State depends upon recognition,
recognition cannot be purely declaratory, Regies Generates du Droit Inter-
national de la Paix, 30 Hague Recueil, 1929, p. 271, at p. 329.
"Rivier (loc. cit.), Fauchille (op. cit., vol. I., Pt. I, p. 307), and De Louter
(loc. cit.) have all been outspoken in their rejection of the constitutive view.
Most of the writers mentioned above have been referred to by Lauterpacht
as exponents of the declaratory view (p. 42).
32 [' Only if such abstention were based on their being conscious of having a
duty to abstain would it be possible to speak of an international custom'
(obliging States to abstain), Lotus case (1927), Series A, No. 10, p. 28 1
33 Cf. below, pp. 33-4. J
Obligatory Character of International Law 17
who regard recognition as giving scope to the exercise of inter-
national rights already possessed by a new State must be
considered as holding the declaratory view.
There is another group of writers, described by Professor
Cavare as mi-constitutive, mi-declarative. " These writers, in an
effort to reconcile positive rules of law and social necessity,
advance the argument that recognition is declaratory as regards
certain minimum rights of existence, but constitutive as regards
more specific rights. Such a view is in reality a rejection of the
constitutive view, in so far as it regards States as capable, even in
the absence of recognition, of enjoying rights, however limited,
under international law.
§ 2. Relations Between the Theories of Recognition
and the Theories of the Obligatory Character of
International Law
The theories of recognition are not independent growths, but are
reflections of the more fundamental theories of the nature of
international law. The value and validity of the former must be
assessed and determined against the background of the latter.
Qt is generally recognised that the constitutive theory is an
outgrowth of the positivist school of international law. The
positivist theory, postulating the consent of States as the basis of
international law," requires that not only the content of the law,
but also the subjects thereof, should be subject to the consent of
the States. This is necessary in order to ensure that no State shall
be placed under any obligation to which it has not consented.
Thus Le Normand speaks of the ' double recognition ' of the law
to be observed and the entities to submit to such a lawi? The
relation between the two matters is stated thus by Oppenheim:
' As the basis of the Law of Nations is the common consent of the
civilised States, statehood alone does not imply membership of
the Family of Nations.'37 Triepel sees in recognition a
3* These include Cavaglieri, Miceli, Romano, Fedozzi, Salvioli, Kelsen, Ver-
dross, Kunz and Guggenheim (Cavar6, La Reconnaissance de I'Etat et la
Mandchoukouo, 42 R.G.D.I.P., 1935, p. 1, at p. 53 et seq.).
35 Oppenheim, vol. I, p. 121; Anzilotti, op. tit., vol. I, pp. 44, 48.
3*Le Normand, op. tit., p. 32.
" Oppenheim, loc. tit. in note 35 above.
18 Recognition of States
Vereinbarung, by which the recognising and the recognised bind
themselves to observe the rules in force in the international com-
munity.38 According to Anzilotti, since the juridical norms of
international law are created by means of an agreement, the
subject of the international juridical order commences the moment
the first agreement is concluded. Recognition is considered as
none other than the conclusion of a pact based upon the rule
pacta sunt servanda.39 This wedlock between positivism and
' constitutivism ' dates back to Hegel, who may be regarded as the
spiritual father of both doctrines, and it is no surprise that they
should go hand in hand with each other.40
It is clear from the foregoing that the constitutive theory is in
reality an extension of the positivist doctrine in the field of recogni-
tion. Strong as are the ties between the two doctrines, it is, how-
ever, incorrect to assume that all positivists are constitutivists, or
vice versa. In fact, many adherents of the declaratory view are
positivists.41 Nevertheless, it is basically true that the constitutive
theory relies for its validity upon the consensual basis of inter-
national law, and the predominance it enjoyed in the past has been
the direct result of the vogue of State sovereignty.
In contrast to the positivist theory, the natural law theory is
one which purports to furnish an explanation for the ultimate
obligatory character of international law, apart from the wills of
individual States.42 In this theory, the declaratory doctrine of
recognition finds a natural alliance. For to argue that a State
can become a subject of international law without ,the assent of
the existing States, it is necessary to assume the existence of an
38Triepel, op. cit., p. 101.
39 Anzilotti, op. cit., vol. I. p. 161.
*° Lauterpacht, p. 38. Although Professor Lauterpacht subscribes to the
constitutive view (ibid., p. 2), it does not seem that he is in agreement with
the positivist doctrine. See his The Function of Law in the International
Community, 1933, pp. 431-43. In fact, his insistence upon the legal nature
of recognition has drawn him very close to the declaratory view (cf. below
pp. 50-1).
41 See, for example, the positivist views of the following declaratory writers:
Hall, pp. 2-5; Fauchille, op. cit., vol. I, Pt. I, p. 8; Rivier, op. cit., vol. I,
p. 22; Hyde, vol. I, pp. 1, 4; De Louter, op. cit., vol. I, pp. 16-7; Moore,
Digest, vol. I, pp. 3, 5; Goebel, op. cit., pp. 56-8. Westlake is classed by
Salmond among positivists (Jurisprudence* 9th ed., 1937, p. 720, n.e.),
but see below, pp. 25, 26, n. 77. Kunz even goes so far as to say that all
declaratory writers are positivists (Lauterpacht, p. 3).
42 See Hershey, History of International Law since the Peace of Westphalia,
6 A.J.I.L., 1912, p. 30; Humphrey, On the Foundations of International Law,
39 A.J.I.L., 1945, p. 231, at pp. 231-4; also below, pp. 26-7.
Obligatory Character of International Law 19
objective system of law to which the new State owes its being.
The existence of such a system of law is the basic condition for
the validity of the declaratory theory.
§ 3. Positivism Examined
The positivist doctrine has its theoretical foundation in the idea
of the sovereignty of States. The sovereign States, unleashed
from the unifying forces of the Empire and the Church, have, since
the Peace of Westphalia, asserted themselves to be all-supreme,
repugnant of external restraints. Fortunately, the very circum-
stances which called forth the theory of sovereignty also gave rise
to its antithesis : the necessity of setting up some rules of conduct
to enable States equally sovereign to deal with one another.
These rules constitute the law of nations. But how can sovereign
States, supposedly not under any external restraint, be subject
to the rule of law? In order to seek an explanation for the
existence of such a law without giving offence to the doctrine of
sovereignty, writers have resorted to the expedient of positivism.
By contending that international law is binding upon the State
because it consents to be bound, it is thought that a reconciliation
can be brought about between freedom and organisation.43
It has now been increasingly realised that this conception of
sovereignty is false, not only historically, but also analytically. A
State is merely an institution, ' that is to say, a system of relations
which men establish among themselves for securing certain
objects, of which the most fundamental is a system of order within
which their activities can be carried on '." They possess no more
inherent sanctity or finality than the multitude of other
13 For the reception of positivism in British courts, see R. v. Keyn (1876), 2 Ex.
D. 63, 131, 154, 202; Lord Russell of Killowen's definition of international
law (12 L.Q.R. 1896, p. 313), adopted by Alverstone, L.C.J., in West Rand
Central Gold Mining Co. v. The King [1905], 2 K.B. 391, 407; Matter of
an Arbitration Between the Osaka Shosen Kaisha and the Owners of the
S.S. Prometheus [1906], 2 Hong Kong Law Reports, 207, 225, printed in
Cases, pp. 33-4.
For its reception in American courts, see Ware v. Hylton (1796), 3 Dall.
199, 227; The Antelope (1825), 10 Wheat, 66, 122; The Scotia (1871), 14 Wall,
170, 187. This influence is also noticeable in the judgment of the Per-
manent Court of International Justice in the Lotus case (1927), Series A,
No. 10, p. 18. For discussions on this question, see Salmond, op. tit., 10th ed.,
1947, pp. 32-3; Holland, Lectures on International Law, 1933, pp.24-7; Pollock,
The Sources of International Law, 18 L.Q.R. 1902, p. 418, at p. 419;
Hershey, loc. cit., pp. 34-7.
"Brierly, Law of Nations, 1949, p. 111.
20 Recognition of States
institutions which men, for the satisfaction of their various needs,
have organised among themselves. The notion of sovereignty
was intended by its original inventors as an explanation of the
internal authority within a State, with practically no regard to
the relations of States with one another.45 The sovereign is one
who determines the competence of others, but whose competence
is not determined by others. This idea cannot exist in a com-
munity in which there are two or more such sovereigns: if the
one is, the other cannot be, a sovereign. It is incompatible with
the notion of law, for the function of law is to delimit the com-
petence of its various subjects.46 ' Sovereignty ', writes Sir John
Fischer Williams, ' is only a name given to so much of the inter-
national field as is left by law to the individual action of States.
What is sovereignty is not law; what is law is not sovereignty.
All law is based on an abandonment of sovereignty, " that man
may obtain justice he gives up his right of determining what it is,
in points the most essential to him ".' "
Since the co-existence of States and their dealings with each
other in accordance with rules of law are undeniable facts, to
support a theory of absolute sovereignty in the face of such facts
would be to dwell in a world of unrealities. Positivism, whatever
function it has fulfilled in the development of international law,
is no longer consistent with social realities, and is certainly not,
to say the least, conducive to peace and order in the present-day
world. Its effort to reconcile the sovereignty of the State with the
rule of law is an impossible task. Apart from its reliance upon
the theory of sovereignty, which must be rejected, the positivist
doctrine itself is insufficient as a theoretical explanation of the
binding force of international law. To place international law
upon a consensual basis, it is absolutely necessary to hold that a
State has not merely the right to give consent, but also the right
to withhold or withdraw it at will. But ' a law which a subject
can take up and put down as suits his convenience is not law in
any true sense '." No writer of distinction has ever given support
to a theory of the right of States to withdraw their consent to a
15 Keeton, National Sovereignty and International Order, 1939, p. 37 et seq.
" Brierly, op. cit., p. 47; Scelle, op. cit., vol. I, pp. 13-4, 77.
" Op. cit., p. 26; also Krabbe, L'Idee Moderr.e de I'Etat, 13 Hague Recueil.
1926, p. 513, at p. 576.
48 Williams, op. cit., p. 62.
Obligatory Character of International Law 21
rule of international law universally established." This principle
of the irrevocability of consent is obviously inexplicable by any
theory of consent. To say that the State has itself given its
consent to such a principle is to argue in a circle.
The positivist theory which relies upon the maxim pacta sunt
servanda, such as that held by Professor Kelsen, Verdross50 and
Anzilotti,51 indeed, explains the binding force of treaties,
but leaves completely unexplained the binding force of the
basic substratum of customary norms, of which the maxim is
one.52 The maxim forms a sort of superior norm, from which all
other norms emanate. But it is itself an a priori assumption,
anterior and superior to law, having its origin in political
and moral circumstances but not admitting of a juridical
explanation.
The theory is open to other criticisms. It is unable to account
for the obligatory force of customary international law, except by
resorting to the questionable artificiality of ' tacit consent '." It
fails to explain, as Professor Lauterpacht points out, the existence
of those ' generally recognised principles of law to which States
have only recently granted express recognition, but which, even
apart from the constant practice of States, necessarily form part
of international law \" It is not uncommon for rules to be bind-
ing upon States without any form of consent expressed by or
imputed to them. Modern ' law-making treaties ' have often been
regarded as constituting an exception to the maxim pacta tertiis
49 States wishing to liberate themselves from international obligations have
often resorted to various pretexts, such as the doctrine rebus sic stantibus or
vital change of circumstances (Russian note of October 31, 1870, denouncing
the Black Sea Clause of the Treaty of Paris, 1856, Hertslet, Map_ of Europe
by Treaty, vol. 3, pp. 1892-5), the doctrine of necessity (opinions of the
British Queen's Advocates cited in McNair, Law of Treaties, 1938,
pp. 233-41) or the doctrine of self-preservation (Hall, p. 415), but never
on the ground that the previous consents are revocable at will. See the
Protocol of London, 1871, in which the Powers reaffirmed the principle
of the irrevocability of consent (Hertslet, op. cit., p. 1904).
50 This view has now been abandoned by these writers (Kunz, The Meaning
and Range of the norm 'pacta sunt servanda', 39 A.J.I.L., 1945, p. 180,
at p. 181).
51 Anzilotti, op. cit., vol. I, pp. 43-4.
"See Kunz, loc. cit., p. 181.
83 Lauterpacht, The Function of Law in the International Community, 1933,
p. 421; Starke, Monism and Dualism in the Theory of International Law,
17 B.Y.I.L., 1936, pp. 66, 73; below, p. 24,
"Lauterpacht, ibid.
22 Recognition of States
nee nocent nee prosunt.ss The applicability of such conventional
rules to non-signatories must necessarily be a rebuff to the consent
theory.
It may be further argued that in erecting the maxim pacta
sunt servanda into the sole source of the obligatory force of
international law, Anzilotti's theory inevitably fails to provide a
valid solution for the conflict of treaties with one another or with
customary international law. The validity of a treaty or a rule
--'can only be tested by a rule of a higher hierarchy than itself. If all
treaties and rules derive their obligatory force from the only
source, the pacta, they will all have equal force, and a conflict
between them would not admit of any solution. Nor is it possible
under that theory to determine whether a treaty, as such, is a
valid one, whether the parties have capacity, whether rules of
procedure and formal validity have been met, and whether or not
vitiating circumstances, such as the illegality of objects, exist.66
Rules determining such questions do in fact exist." Their
existence and operation must necessarily be left unexplained by
Anzilotti's theory.
The elevation of the principle pacta sunt servanda into an
initial hypothesis predicates the recognition of a legal order
exterior and superior to the wills of States.
'So long as the binding force of this basic postulate is
assumed ', writes Professor Lauterpacht, * the view that inter-
national law is a " system of promises " is only of secondary
importance. The rule pacta sunt servanda confronts States as
an objective principle independent of their will. ... It does not
matter whether the rule pacta sunt servanda is juridical or pre-
legal; whether it is imposed as a matter of juridical construction
or as a clear generalisation from the actual practice and legal
convictions of States. The result is the same. ... In both cases
"See below, p. 437, n. 44. [It is controversial, however, how far the rules
affecting so-called 'law-making treaties' differ from those regulating other
treaties. See Schwarzenberger, International Law as Applied by Inter-
national Courts and Tribunals, 1-949, pp. 529-30; cf. also Advisory Opinion
of P.C.I.J. on Status of Eastern Carelia (1923), Series B, No. 5, pp. 27-8, ex.
Advisory Opinion of I.C.J. on Reparation for Injuries Suffered in the Service
of the United Nations (1949), I.C.J. Reports 1949, p. 174 at p. 185. Cx. Jessup,
A Modern Law of Nations, 1948, p. 134.]
56 See below, pp. 437-8.
" See McNair, op. cit., chapters III, X-XII, XIV; Oppenheim, vol. I, pp. 805-8;
Schwarzenberger, op. cit., n. 55 above, chapters 21, 23.
Obligatory Character of International Law 23
the basic rule constitutes a command, i.e., a rule existing indepen-
dently of the will of the parties.' 58
Other forms of consent theory meet practically the same
difficulty, they either have to argue that the consent is revocable
or that it is not. In the former case, it is to deny the obligatory
force of international law. In the latter case, it is to accept a
superior legal order over and above the State. The former
situation may be exemplified by the * auto-limitation ' theory of
Jellinek, and the latter by the Vereinbarung theory of Triepel.
According to Jellinek, international law is the product of the
act of self-limitation by the State. The State, being the ultimate
authority which gives legal force to international law, is entitled
to disengage itself at any time by changing the law.59 Although
Jellinek insists upon the objectively binding force of international
law,60 his admission that the self-imposed limitation is susceptible
of being discarded cannot but be a negation of that binding
force.61
Triepel's doctrine is also based upon the fundamental idea
that a State is bound by international law only as the result of its
own will. Unlike Jellinek, Triepel starts out with the intention of
finding a rule of law above the subjects to whom it applies. Such
a law is a declaration of a superior will and cannot be changed by
the individual wills of the States. But in a community of States
which are independent of one another and do not submit to any
superior authority, how can a law above the State be created?
Triepel finds the answer in the Vereinbarung which, as distin-
guished from a contract, is ' a fusion of different wills having the
same content \" By this process, the individual wills of States
merge into a common will and constitute a binding law above
the individual wills. A State, once it has entered into the
Vereinbarung, is no longer permitted to liberate itself from the
obligations of the common will. Thus, the individual wills of
States, though expressing themselves during the formation of the
58 Lauterpacht, op. cit., p. 419; also Brierly, op. cit., p. 54.
59 Lauterpacht, op. cit., p. 410.
60 See Cavaglieri, Regies Generates du Droit de la Paix, 26 Hague Recueil,
1929, p. 321.
81 Lauterpacht, op. cit., p. 412; Brierly, op. cit., pp. 54-5; same, Le Fondement,
pp. 20-2.
62 Triepel, op. cit., p. 49. This corresponds to Le Normand's distinction
(op. cit., p. 132) between the declaration of will and the accord of wills.
1/
24 Recognition of States
common will, are not the source of international obligations.
International obligations are derived from the common will
expressed in the Vereinbarung. Triepel further admits that it is
impossible to explain why the Vereinbarung is binding, and that
his argument proves the impossibility of a general international
law. As to the first point, like Anzilotti, he argues that there
must be a point at which the juridical explanation of the
obligatory character of law becomes impossible. ' The " basis "
of the validity of law is outside the law.' 63 As to the second point,
since it is impossible to show the existence of a Vereinbarung in
which all the States take part, such international law as exists can
only be particular international law binding on those who have
taken part in its creation.64
Triepel's theory seems to have gone one step further than that
of Anzilotti, in not only acknowledging the superior character of
the initial hypothesis, but also in regarding as above the States
L/the rules derived from the operation of that hypothesis. The
consent of the State is merely a process through which a rule
of international law is created, but the source of its binding
power lies elsewhere and is not susceptible of explanation. This
being so, even if there had been, historically or hypothetically, a
time in which the State was sovereign and unlimited by law, that
state of affairs has definitely ceased to exist, as soon as the State
concluded its first Vereinbarung with other States. Then, it can
hardly be urged that States, as they are today, are not subject to
an objective system of law, independent of their individual wills.
It is common for those who seek to place international law
• upon a consensual basis to explain the binding force of customary
rules- by resorting to the theory of ' tacit consent \65 But to base
customary law on tacit accord involves a greater feat of reasoning
than merely to assume that all contracts are binding. For, apart
from accepting that assumption, it is necessary to demonstrate
how an act, without ostensibly expressing a particular will, can
be deemed to have the effect of having expressed such a will. The
theory of tacit accord must first of all presuppose the existence
"Triepel, op. cit., p. 81.
64 See criticisms in Brierly, Le Fandement, pp. 22-4; Lauterpacht, op. cit.,
pp. 415-6.
" Anzilotti, op. cit., vol. I, pp. 73-6; Triepel, op. cit., p. 90; Cavaglieri, he. cit.,
p. 362.
Obligatory Character of International Law 25
of a law which attributes to an act the effect of having expressed a
particular will on a particular matter.
In municipal systems, a custom, to be binding on an in-
dividual, does not require the assent of that individual; it is enough
that it has received general assent, the opinion of any particular
individual notwithstanding. This principle seems also to have
been accepted in international law. In cases where it is doubtful
whether a particular State has assented to a particular generally
accepted rule of international law, it has been held that the assent
may be presumed." Where a great majority of leading Powers
have agreed to a certain custom, the dissension of a few minor
States would be inconsequential." Occasionally, a rule is con-
sidered as binding even upon States which have expressly
rejected it."
The word ' consent ' " need not be strictly construed. In
order that a rule may become international law, it is not neces-
sary that each and every State should express its consent;
it is sufficient that a ' general consensus ' is achieved. Thus
Westlake writes :
'When one of these rules (of international law) is invoked
against a State, it is not necessary to show that the State in
question has assented to the rule either diplomatically or by
having acted on it, although it is a strong argument if you can do
so. It is enough to show that the general consensus within the
limits of European civilisation is in favour of the rule.' 7°
Even Oppenheim is obliged to concede that
' " Common Consent " can therefore only mean the express
or tacit consent of such an overwhelming majority of the members
that those who dissent are of no importance whatever and dis-
appear totally from the view of one who looks for the will of the
" See West Rand Central Gold Mining Co. v. The King [1905], 2 K.B. 391,
406-7.
67 See The Paquete Habana and The Lola (1900), 175 U.S. 677, 708; Hyde,
vol. I, p. 8, n. 1; Pollock, loc. cit., p. 418.
68 Although Latin American States have rejected the rules establishing an
objective minimum standard for the treatment of foreigners, these rules
have nevertheless been applied to them by international tribunals (Humphrey,
loc. cit., p. 237).
" The term itself is ambiguous and vague. See Salmond, op. cit., 9th ed., p. 721.
70 Westlake, Collected Papers of John Westlake on Public International Law,
1914, p. 78 (italics added); same, International Law, 1910, vol. I, p. 16.
^f.
26 Recognition of States
community as an entity in contradistinction to the wills of its
single members.' 71
If ' consent ', which is the basis of international law, means
' general consensus \ in which the individual wills of any particu-
lar State are negligible, it is really another way of saying that
tates are subject to international law, regardless of their consent."
' Consent ', so interpreted, may be said to be the basis of municipal
law, as well." Oppenheim has, in fact, said that 'Common
consent is the basis of all law 7* We are probably coming to a
point where positivist and naturalist doctrines converge.
§ 4. Law Above the States
The analysis of the positivist doctrine leads to the conclusion
that this doctrine is faced with two alternatives, either to pre-
suppose an objective juridical order above the State, thereby
renouncing its claim as a legal theory, or to reject the binding
force of international law, thereby amounting to a negation of
international law qua law. Both of these would defeat the
purpose of supplying an explanation for the obligatory character
of international law. The naturalists, on the other hand, have
offered several explanations. Some seek to explain the obliga-
tory character of international law by the ordinance of the Divine
Will " ; some by the inherent nature of the State " ; some by the
biological and social necessity of human nature " ; and still others
71 Oppenheim, vol. I, p. 17. Roxburgh, however, refuses to regard a rule as
law with respect to the State which has not assented to it. He only concedes
that for practical purposes the dissenting State may be neglected (Roxburgh,
International Conventions and Third States, 1917, s. 66).
72 It is believed by some that a State may also be bound by treaties to which
it is not a party (below, p. 437, n. 44).
73 Pollock, A First Book of Jurisprudence, 1929, p. 30.
74 Oppenheim, op. cit., p. 16 (italics added). This writer became more and
more inclined to the naturalist views in his later years (Lauterpacht, op. cit.,
p. 404, n. 1).
75 Halleck, op. cit., pp. 42-6; Phillimore, op. cit., vol. I, Preface, pp. xv-xvi, 15.
76 Phillimore thinks that the necessity of mutual intercourse is the basis of
international law (ibid., Preface, p. xv). Sir Cecil Hurst speaks of inter-
national law as 'the necessary concomitant of statehood' (The Nature of
International Law and the Reason why it is Binding on States, 30 Grotius
Transactions, 1945, p. 119, at p. 125).
77Scelle, op. cit., vol. I, p. 31. Westlake attributes to the social nature of
man the existence of the juridical conscience which transcends State fron-
tiers (Collected Papers of John Westlake, pp. 78, 81).
Obligatory Character of International Law 27
by the juridical consciousness 7S and the juridical nature" of the
international community. These views, obsolete as some of them
may sound, reflect one fundamental truth, which itself is un-
assailable : that is, the existence in the international community
of a legal order to which. States are subject, and which they are
not free to reject at will. Such a society of States may seem
rudimentary, as compared with intra-State societies; nevertheless,
its existence is real. This idea has been mildly put with all safe-
guards against undue over-optimism by Professor Brierly:
' But only a very gloomy pessimist would fail to recognise
that common moral and cultural standards do exist internationally,
that they influence conduct between nations and that this com-
munity of sentiment, imperfect though it is, affords some basis for
law.' 80
These views are valuable as a corrective to the cult of State-
worship and the inflexiblelogic of the theory of sovereignty. They
bring home the fundamental truth that the historic unity of
Christendom81 and the jurisprudential unity of the Roman law82
have not been completely lost through the centuries. The
refutation of consent as the basis of international law does not
mean that consent has no place at all in international law. The
argument is merely that the consensual theory is inadequate as an
explanation. No one can deny the part played by the consent of
States in formulating, substantiating and modifying international
78 Krabbe, loc. cit., p. 577. Liszt, though maintaining that the will of the
international community is the union of wills of States {op. cit., p. 8),
nevertheless agrees that ' Le droit international a pour fondement la con-
science juridique commune des etats civilises' {ibid., p. 12). His view
has undergone some change in the 11th edition of his work, in which he
admits that the law of the State and international law are of the same
nature (Lauterpacht, op. cit., p. 432, n. 3). See also, Bluntschli, op. cit.,
s. 4.
79 Westlake, op. cit., p. 3; Lauterpacht, op. cit., pp. 422-3; Goodhart, The Nature
of International Law, 22 Grotius Transactions, 1936, p. 31, at pp. 40-1.
80 Brierly, Law of Nations, 2nd edition, 1942, p. 35. [In the fourth edition,
1949, Professor Brierly points out that ' some . . . nations . . . are inclined
to look on international law as an alien system which the western nations,
whose moral or intellectual leadership they no longer recognise, are trying
to impose upon them, and in effect they have begun to claim the right
to select from among its rules only those which suit their interests or which
arise out of agreements to which they themselves have been parties. . . . The
result of positivism has been to secularise the whole idea of law and thus
to weaken the moral foundation which is essential to the vitality of all
legal obligation ' (pp. 44, 45).]
81 Holland, op. cit., p. 16 et seq.
82 Maine, International Law, 1915, pp. 17-8.
28 Recognition of States
law." Neither can one deny the fact that the consent of States
has been directly instrumental in the creation of the rapidly
developing rules of conventional international law, or that to
impose a new rule of law against an unwilling State would involve
tremendous hazards and difficulties.84 Credit must also be given
to positivism for keeping us reminded of what the law is and how
far it is from complete. ' The real contribution of positivist theory
to international law ', writes Professor Brierly, ' has been its
insistence that the rules of the system are to be ascertained from
observation of the practice of States and not from a priori
deductions. . . .' "6
The relative position of positivism and naturalism in inter-
national law is well illustrated in the Hague Conventions and the
Statute of the World Court. In the Preamble of the Convention
on The Laws and Customs of War on Land it is stated :
' Until a more complete code of the laws of war can be issued,
the High Contracting Parties think it expedient to declare that
in cases not included in the Regulations adopted by them, popula-
tions and belligerents remain under the protection and the rule of
the principles of the law of nations, as they result from the usages
established between civilised nations, from the laws of humanity,
and the requirements of the public conscience.' "
Article 38 of the Statute of the World Court stipulates as
sources of international law: (a) international conventions, (b)
international customs, (c) the general principles of law recognised
by civilised nations, and (d) judicial decisions and the teachings
of the most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.*7 The
83 ' International law, as understood among civilised nations, may be defined
as consisting of those rules of conduct which reason deduces, as consonant
to justice, from the nature of the society existing among independent nations;
with such definitions and modifications as may be established by general
consent' (Dana's Wheaton, Pt. I, s. 14). Similarly, see Van Ness, J., in
Johnson v. Twenty-one Bales (1832), 2 Paine 601, 604 (or Cases, p. 12, n. 7);
Story, J., in United States v. The Schooner La Jeune Eugenie (1822), 2 Mason
(Mass.), 409 (ibid., p. 16).
84 Brierly, Le Fondement, p. 24.
85 Brierly, Law of Nations, 1949, p. 55; [cf. also Hyde, vol. I, Foreword,
pp. vii-ix; and see Schwarzenberger, The Inductive Approach to International
Law, 60 H.L.R., 1947].
88Higgins, Hague Peace Conferences, 1909, pp. 209-11 (bur italics).
87 Hudson, The Permanent Court of International Justice, 1920-1942, 1943, p. 677.
[See also Schwarzenberger, op. cit., n. 55 above, chapter 2; and S0rensen, Les
Sources du Droit International, 1946.]
Obligatory Character of International Law 29
inclusion of the general principles of law is significant. ' Its
inclusion ', writes Professor Brierly, ' is important as a rejection
of the positivist doctrine, according to which international law
consists solely of rules to which states have given their consent.' 88
Sir John Fischer Williams thinks that ' These general principles
come very near to that natural law or law of nature '." Professor
Lauterpacht has shown how, through the application of these
sources of law, the Permanent Court succeeded in evolving rules
of international law independently of the wills of individual
States.90 The existence of such rules is a strong argument for
the declaratory theory of recognition.
88 Brierly, op. cit., p. 64; [cf., however, Schwarzenberger, op. cit., p. 19 et seq.;
S0rensen, op. cit., chapter 6.]
89 Williams, op. cit., p. 49.
99 Lauterpacht, The Development of International Law by the Permanent
Court of International Justice, 1934, pp. 10-2.
CHAPTER 2
THEORY OF THE RECOGNITION OF STATES
§ 1. Recognition and the International Personality
of States
The basic conception of the constitutive theory, as shown above,1
is that, although a State may exist in fact, it does not exist in
international law until recognised. What, then, one would ask,
is the condition of a ' State ' which is ' non-existent ' in inter-
national law? Some think that it exists from the point of view
of constitutional law; others that it exists de facto, but not
juridically.2 Constitutive writers seem to agree that, although
without an international personality, a State may nevertheless
have ' existence '. Even the most convinced of the constitutivists
have not claimed for recognition the effect of ' creating ' the
State.3 |_What is claimed for it is merely the conferment upon an
already existing State of an international personality, a quality to
'-/ act in the international sphere productive of legal results. It is
therefore necessary for writers of the constitutive school to draw
the distinction between a State and an international person?] Thus
Oppenheim writes :
'. . . Statehood alone does not imply membership of the Family
of Nations.5 There is no doubt that Statehood itself is independent
1 Above, p. 3.
2 See Hobza, ha Republique Tchecoslovaque et le Droit International, 29
R.G.D.I.P., 1922, p. 385, at p. 389; rejected in Erich, loc. cit., note 21 above,
p. 15, at p. 467.
3 The Congo Free State has often been cited as an example of the creation
of States through recognition {ibid., pp. 448-9; Le Normand, op. cit., note 3,
p. 14 above, p. 264). For contrary view, see Nys, loc. cit., n. 21, p. 15
above, p. 294. As regards the creation of the Vatican City, see below, p. 76.
4 The term ' international person ', or ' person in international law ', has been
used interchangeably with ' subject of international law ' and ' member of the
family of nations '. But for those who admit entities other than States as
international persons, it is necessary to distinguish between international
persons and members of the Family of Nations, the latter being reserved for
States only {Keith's Wheaton, vol. I, p. 48). In the present discussion the
State alone being concerned, this distinction is immaterial.
5 Oppenheim, vol. I, p. 121.
30
Theory of Recognition of States 31
of recognition. International Law does not say that a State is
not in existence as long as it is not recognised, but it takes no
notice of it before its recognition.' *
It is difficult to accept this distinction. When it is said that
' International Law does not say that a State is not in existence ',
in what sense is the word ' existence ' used? Unless it is used in
the international law sense, international law ought to say that
the State does not exist. If international law does not say that
the State is not in existence in the international law sense, it
would hardly be proper for it not to take notice of it.
Moreover[_the word ' State ', used as meaning a full-sovereign /
State, cannot but have an international significance^ 'Sovereignty',
as defined by Oppenheim, is ' supreme authority, an authority
which is independent of any other earthly authority . . . indepen-
dent all round, within and without the borders of the country.' 7
Independence is the opposite of subjection or subordination.
What is independence to one is abstention from interference to
others. [A society can exist as a sovereign ' State ' only when it
enjoys this independence vis-a-vis other States, that is to say, \/
independence in the sense of international law. Therefore to say
that a State ' exists ', but is not a subject of international law, is a
contradiction in terms7\ [Westlake, however, states that ' it is not
necessary for a state to be independent in order to be a state of
international law '.']
Some writers who deny that a State can be considered ipso
facto a subject of international law are, however, inclined to
admit that such human associations as member-States of a federal
union, vassal States, protectorates, the British Self-Governing
Dominions (even prior to 1931), mandates and trust territories,
which lack certain essential attributes of sovereignty, may be
considered as international persons for some purposes.9 It is
difficult, then, to see why a sovereign State, by definition indepen-
dent and supreme in itself, should be denied international
personality.
6 Oppenheim, vol. I, 5th ed., 1937, p. 120. Similarly, Liszt, op. cit., note 4, p. 14
above, p. 53. [See also Charter of the Organisation of American States, signed
at Bogotd, 1948 : ' The political existence of the State is independent of recog-
nition by other States' (Article 9), 18 Dept. of State Bulletin, 1948, p. 666.]
7 Oppenheim, vol. I, 5th ed., p. 113; Le Normand, op. cit., p. 70.
8 [International Law, 1910, vol. I, p. 21.]
' Oppenheim, vol. I, p. 165 et seq.; see also Schwarzenberger, op. cit., n. 55,
p. 22 above, chapter 5.
32 Recognition of States
Some writers, with a view to reconciling the fact of State
existence with the constitutive theory, have ingeniously put
forward the distinctions between internal and external
sovereignty 10 ; between the possession and the exercise of
sovereignty " ; between abstract and real existence 12 ; and
between existence as a member of the human society and existence
as a member of the society of nations.13 [The common character of
their arguments is that a State existmg in isolation, although
theoretically it is capable of possessing rights, has in practice no
occasion for exercising them. This aptitude for rights, or this
personality, even if conceded, is abstract, because the State is
unable to put it into operation and to make it felt by other States.
In order that its existence may be real and its rights exercisable
it is necessary that the State should be admitted into the inter-
national community through recognition!] ' Admettre dans la
societe des Etats', writes Le NormanST ' c'est faire sortir de
V existence purement abstraite et de fait pour appeler a V existence
juridique.' "
In another place, a more forceful argument is advanced. It
is argued, in effect, that, since only subjective rights can constitute
personality, and since personality can only be concrete, never
abstract, to acquire a personality at all, a State must be admitted
into the international society through recognition.15
It is difficult to agree with this view.|_Jiven if assuming that
all rights, to constitute personality, must be subjective (a pro-
position which will be rejected below), it is still far from proving
that recognition, as such, can directly give rise to any subjective
rights. Subjective rights are acquired through the actual entering
10 Pradier-Foderfi and Foignet, cited in Le Normand, op. cit., pp. 8-9 and 35;
Keith's Wheaton, vol. I, pp. 42-6; Fauchille, op. cit., note 24, p. 15 above,
vol. I, Pt. I, p. 306. See for the rejection of this distinction, above, p. 31.
"See above, p. 5.
12 Fiore, op. cit., note -25, p. 15 above, Article 48.
13 Carnazza-Amari, cited in Le Normand, op. cit., p. 16; Kunz, cited in
Cavard, loc. cit., note 34, p. 17 above, p. 59.
11 Le Normand, op. cit., p. 37; also Fiore, op. cit., Article 35. [Article 6 of the
Bogota Charter, 1948 (see n. 6 above), however, states that, 'Even before
being recognised, the State has the right to defend its integrity and indepen-
dence, to provide for its preservation and prosperity, and, consequently, to
organise itself as it sees fit, to legislate concerning its interests, to administer
its services, and to determine the jurisdiction and competence of its courts.
The exercise of these rights is limited only by the exercise of the rights of
other States in accordance with international law.']
15 Le Normand, op. cit., p. 81.
Theory of Recognition of States 33
into relations, which may or may not take place after
recognition. The extent to which States enter into relations with
other States is always a matter of degree and policy. In this
sense, the personality of one State is bound to be more or
less ' abstract ' than another. Recognition, as such, does not
make it ' concrete \J
^Moreover, to sustain the argument that the personality of a
State cannot be concrete without being admitted into the society t-
of nations^) it is further necessary to maintain two propositions,
both of which fail upon analysis *Tfirst, that all rights of a State
must result from its entering into active relations with other States ^
in the society of nations; secondly, that membership of this society
is restricted, and admission can be obtained only through
recognition.)
It is strictly true that [the great bulk of rights and duties
between States are the result of active international relations. But t-
there are also rights that may exist without such relations^
Jellinek conceives of recognition as having two objects : to create
an isolated personality of the State, and to create the State as a
member of the community of nations. As an isolated subject of
international law, he argues, the State can claim the rights of
abstention, whereas, as a member of the international community,
it enjoys the privileges of sending and receiving envoys, the
conclusion of treaties, and the like.16
(jt is believed that, even in the absence of diplomatic relations,
certain minimum rights can nevertheless be claimed and exercised /''
by a State, for instance, the rights of independence and territorial
integrity.17 To argue otherwise would be to maintain that an
unrecognised State may be invaded and subjugated without
violation of international law) Although it is true that under
traditional international law even an established State may be
liable to invasion by another after the formality of a declaration
of war,18 yet it is doubtful whether it is correct to say that the
unrestricted right of war is the same thing as the unrestricted right
of invasion.
(There is another group of rights which do not result from inter-
national relations, namely, the rights under the laws and customs
16 This view is discussed and rejected by Le Normand, op. cit., p. 81.
17 [See Bogota" Charter, 1948, Article 6, loc. cit., n. 14 above.]
18 Lauterpacht, p. 4.
34 Recognition of States
of warTj It has been pointed out by writers on international law
that, should an unrecognised community become engaged in war,
the laws of, war will be followed as in any international war.19
Likewise|_should an unrecognised community remain neutral in
an international war, its neutrality is to be equally respected by
the belligerents^"/ If such are the rights and duties of an un-
recognised community, it is difficult to argue that it has no
personality in international law.
Furthermore^if an unrecognised State has emerged as the
result of a civil war during which it enjoyed all the rights of the
law of war, it is somewhat perplexing to find that, having
achieved victory and established itself as a State, it should
suddenly be deprived of personality. While, as a belligerent
community, it was entitled to set up prize courts and their
decisions were entitled to universal respect, why, upon attaining
statehood, should the decisions of its courts cease to inspire the
same respect which had been accorded to them at a time when
the probability of its permanence was still in the balance^-/
It has been argued that in the absence of international
relations, an international right, lacking means of enforcement, is
abstract, like a ghost elusive to the grasp.21 In reply, it may be
said that every system of law admits of certain types of rights not
immediately enforceable. These may be ' imperfect rights ', but
they are none the less legal rights.22 (/The lack of international
relations renders the enforcement of rights difficult, but not im-
possible 23 ; it suspends the enforcement of rights, but does not
destroy them. The inconvenience which such a state of affairs
may create may be considerably reduced by the doctrine of the
retroactive effect of recognition.21 The proposition that the lack
of means for enforcing international rights does not constitute
an impediment to the acquisition of State personality finds further
proof in the analogous cases of the severance of diplomatic
19 Lauterpacht, p. 53; Cavard, loc. cit., p. 49.
80 Brierly, Regies Generates du Droit de la Paix, 58, Hague Recueil, p. 54.
21 Holmes, J., The Western Maid (1922), 257 U.S. 419, 433. See similar views,
above, p. 5.
"Salmond, op. cit., 10th ed., pp. 248-9.
23 Measures of retorsion, reprisals and war are always open to the unrecog-
nised State. The newly formed kingdom of Italy in 1861 compelled
recognition by withdrawing the exequaturs of German consuls (Moore,
Digest, vol. 1, p. 72).
21 See below, p. 172 ff.
Theory of Recognition of States 35
relations and the non-recognition of the new government of an
old State. Here, too, international relations are broken off, inter-
national rights are no longer enforceable, and no normal way is
open for the creation of subjective rights. ~)But it has never been
suggested that States which have severed diplomatic relations with
some other States or which have governments unrecognised by
some other States are not persons of international law. [it seems,
therefore, that the lack of means of enforcing subjective rights
does not warrant the conclusion that a State has no personality?)
\_The second assumption that the international community is
in the nature of a closed club with restricted membership, to which
admission is granted through the process of recognition, is equally
mischievous^ The historical fact that international law originated
among the States of Europe has made this notion of a ' closed
club ' a constant feature in the theories of international law. Thus,
basing his argument upon this notion, Lorimer speaks of the three
concentric zones or spheres of recognition," and some writers
contend that recognition is not necessary for European States."
Two questions suggest themselves. Is it true that international
law contains principles that are exclusively peculiar to European
civilisation? Is it possible at the present day to confine the
application of such principles to a limited section of human
society?
It cannot be denied that, as a matter of history, the formula-
tion, theorisation and systematisation of the international legal
system are the products of Europe. Yet, to conclude, without
exhaustive research, that such principles as obtain in modern
international law did not have parallel developments among non-
European countries,27 or that in the course of their development
they have been entirely unaffected by any non-European influ-
ences, is to assume an attitude which can hardly be called
scientific. If we recognise the natural necessity of co-existence
25 Lorimer, op. cit., note 19, p. 15 above, vol. I, pp. 101-2.
z" Lawrence, op. cit., note 5, p. 14 above, p. 82. Strisower thinks that recog-
nition between States of European civilisation is merely a manifestation of
the wish to enter into relations (Le Normand, op. cit., p. 16). See distinction
between the recognition of States within and outside the international com-
munity, the latter being constitutive (note 13, p. 32 above. Also Verdross,
note 30, p. 16 above).
" See, for example, the discussion on international law concepts in Ancient
China, Chen, The Equality of States in Ancient China, 35 A.J.I.L., 1941,
p. 641, esp. literature cited at p. 642, n. 5.
36 Recognition of States
and intercourse and the common feeling of humanity and brother-
hood of men as the fundamental forces behind international law,
is it not correct to say that the underlying principles of this system
are the reflection of human proclivities generally, rather than a
peculiar characteristic of any particular section of mankind? "
Even if it be conceded that there was once a period in which
international law was the law peculiar to the European community
of nations, we are positive that today it operates in nothing less
than the whole of human society. Sir John Fischer Williams,
while admitting that the assertion of constitutivism in regard to
the recognition of States outside European civilisation is ' less
absurd ', dismisses it as of historical interest only. He says :
' Indeed, the conception of " civilised society " as a community
of nations or States distinct from the rest of the world no longer
corresponds with the main facts of contemporary life. ... In the
contemporary world it is no longer possible to maintain a view of
human society in which some States would constitute a sort of
exclusive club, to which election is made by a committee of the
more prominent members under rather vague rules, more or less
of unanimity, while the rest of humanity is left beyond the pale
under the general protection of principles of morality but excluded
from the reign of law. With this change of circumstances
" recognition " as a fact creative for a State of international per-
sonality has lost whatever meaning it may once have possessed;
civilised men organised in a definite territory under a sovereign
government do not need to beg admission to international society;
their State has ipso facto, by virtue of its mere existence, rights
and duties, and, therefore, personality in the domain of Inter-
national Law.' 29
In the modern world, practically every human society has
either formed itself into an independent State as a member of the
society of nations, or constitutes part of one. Any new entity that
may emerge in future must necessarily be the result of a
reorganisation of existing States. If that is so, it would be un-
28 Turkey had been maintaining relations with other States long before her
admission into the Concert of Europe in 1856. The same is true of China
(Smith, vol. I, pp. 16-8).
For the view that international law is applied to the whole of humanity,
see Victoria (Scott, The Spanish Origin of International Law, Francisco de
Vitoria and his Law of Nations, 1934, pp. 146, 158) and Bluntschli, op. cit.,
note 10, p. 14 above, ss. 2, 7.
"Recognition, 15 Grotius Transactions, 1929, p. 53, at p. 60.
Theory of Recognition of States 37
thinkable that a portion of humanity once under the protection
of international law should, merely because it had reorganised
itself into a new State, suddenly be deprived of that protection.30
The international community of today is co-extensive with human
society." Apart from that community, there can be no State
existence. This can be demonstrated by the fact that it cannot
be imagined that a State can voluntarily withdraw or be expelled
from the international community. Mr. Elihu Root has aptly said
that no nation need consider whether or not it will be a member
of the community of nations. ' It cannot help itself. It may be
a good member or a bad member, but it is a member by reason of
the simple fact of neighbourhood, life and intercourse.' 32 So
long as a State remains a State, it must be subject to international
law. Neither itself nor any other State can alter the situation.
(The idea that there exists an exclusive international community
from which politically organised societies of men, States though
they are, may be barred from admission, is deceptive. A State is
either a member of the international community or not a State at
all. It would be absurd to imagine a ' State ', in the true sense of
the word, which stands outside that community, awaiting admis-
sion or having been excluded therefrom.33J
(.The impossibility of detaching a State from the international
community may also be viewed from a more practical aspect.
The non-recognition of a State does not and cannot_suspend all
intercourse between individuals across the border. I Economic
and social activities must be continued.31 Such activities and
30 hoc. cit., n. 29, p. 36 above, p. 56.
31 [The terms ' community ' and ' society ' have not here been used in their
technical sociological sense. See Schwarzenberger, International Law and
Society, 1 Year Book of World Affairs, 1947, p. 159, The Study of Inter-
national Relations, 3 ibid., 1949, p. 1 at pp. 12-3. Cf. also Individual Opinion
of Judge Alvarez in Membership in the United Nations (19.48), I.C.J. Reports,
1947-1948, p. 68 et seq.]
32 Root, A Request for the Success of Popular Diplomacy, 13 Foreign Affairs,
1937, p. 405, at p. 410. Also Bluntschli, op. cit., ss. 2, 7. [Cx., however,
Schwairzenberger, International Law and Totalitarian Lawlessness, 1943,
for the suggestion that a State may withdraw or be expelled from inter-
national society, chapter 4, ' The Totalitarian States as the International
Outlaws ', especially pp. 107-10.]
33 Erich, loc. cit., p. 465; Goebel, op. cit., note 21, p. 15 above, p. 60. [Cx.,
however, Advisory Opinion of International Court of Justice on Member-
ship in the United Nations (1948), I.C.J. Reports, 1947-1948, p. 57, especially
individual opinion of Alvarez, p. 68.]
34 [Cf. recommendations of the Advisory Committee of the League Assembly
in connexion with ' Manchukuo ', L.o.N. Off. J., 1934, pp. 17, 429. See, also,
Hackworth, vol. 1, p. 332 et seq.]
V
\yy
38 Recognition of States
intercourse inevitably give rise to legal questions which cannot
be ignored. To deny that an unrecognised State exists in law is
to create a legal vacuum within the borders of that State. It works
both ways. Not only the nationals of the unrecognised State
would be deprived of protection under international law; the
nationals of existing States who may come within the jurisdiction
of the unrecognised State would also find themselves in a legal
no-man's-land. This latter consideration seems to have been an
important factor in determining the recognition policy of Mr.
Canning towards the Spanish-American Colonies. The choice
was either to hold Spain responsible for acts of the Colonies,
over which she had lost all control, or to lay that responsibility
on the Colonies themselves. Canning eventually decided on the
latter."
It may be observed, however, that the likelihood of maltreat-
ment of the nationals of the unrecognised State at the hands of
existing States is not so much a direct consequence of non-
recognition as a result of the mistaken belief that such iniquities
can be inflicted with impunity. It is the constitutive view of
recognition which creates and keeps alive such a belief. If States
are aware that, despite non-recognition, a new State is neverthe-
less subject to international law, and is able to exact compliance
with that law by retaliation or otherwise, the danger of improper
treatment would not be so greaty
Our discussion thus far points unmistakably to the conclusion
that a State, if it exists in fact, must exist in law. There is no
middle ground between a State and a member of the international
community. (X State may exist without positive relations with
other States; but it is not Without rights or without means of
exercising them, although the enforcement of such rights may be
highly inconvenient and unsatisfactory. 3S~] The domain of the
35 Canning to Chevalier de Los Rios, March 25, 1825, 12 B.F.S P 1824-5
pp. 912-3.
86 The Montevideo Convention on Rights and Duties of States, December,
1933, provides:
Article 3, Even before recognition, the State has the right to defend its
integrity and independence. . . .
The exercise of these rights has no other limit than the exercise of the
rights of other States according to international law.
Article 4. The rights of each one do not depend upon the power which
it possesses to assure its exercise, but upon the single fact of its existence
as a person under international law, 28 A.J.I.L., 1934, Supplement, p. 75.
Theory of Recognition of States 39
international community has today extended over the whole of
the inhabited world, and is all-pervading and all-inclusive. A
State emerging within this domain is inevitably, ipso facto, one of
its members.
§ 2. The Mechanism of Recognition
Granting, for the sake of argument, that recognition is necessary
for the creation of the international personality of the State, it
still remains for the adherents of the constitutive theory to give a
coherent and logical explanation of |he working mechanism of L
recognition/) Here, several difficulties will have to be encountered.
[if the international personality of the State depends upon
recognition, how did the first State acquire its personality? As
in the case of positivism, some sort of ' initial hypothesis ' will I
have to be devised. J Lawrence, for example, maintains that the
States of Europe, among whom international law had originated,
need not be recognised.37 Liszt thinks that the co-existence of a
plurality of States is the condition necessary for the birth of
international law.38
'The first State in human history', writes Sir John Fischer
Williams, " whether it was Egypt or Mesopotamia or China, must
have arisen of its own strength in a world in which there was
nobody — no other States, that is — qualified to recognise it.' 39
Evidently, there must be some States, at least, whose international
personalities are not derived from recognition.
Another vulnerable point in the constitutive view, to which
declaratory writers have not hesitated to lay siege, is the circum-
stance that, [since recognition is accorded by States individually, \y
and simultaneous action cannot be reasonably expected, the inter-
national personality thus recognised must, until universality of
recognition is achieved, necessarily be partial and relative. The
result would be that a State is a member of the international
community for one State, but not for another.40 There would be
a period during which ' it enjoys at one and the same time the
privileges of existence and non-existence '."1 If recognition is of
87 Lawrence, op. cit., p. 82; also, impliedly, Oppenheim, vol. I, p. 121.
38 Liszt, op. cit., p. 16.
39 Aspects of Modern International Law, 1939, p. 26.
40 Ibid., p. 27; Brierly, loc. cit., note 20, p. 34 above, p. 53.
11 Williams, op. cit., p. 27.
V-
40 Recognition of States
such decisive importance to the existence of a State, as constitu-
tivist writers assert it to be, such a state of confusion must be
extremely embarrassing.
Constitutive writers are compelled by their own logic to
accept this unavoidable consequence of their theory. Le
Normand explains that since personality consists of subjective
rights, which vary from man to man, recognition as a subject of
the law must necessarily be relative." The relativity of recogni-
tion is also accepted by Oppenheim,43 Lorimer,*4 Gemma45 and
Professor Kelsen. The last-named writer emphatically declares
that ' there is no such thing as absolute existence '.** His relativ-
ism is carried so far that he even maintains that a State, having
proclaimed itself to be such, ' becomes a subject of international
law for itself and not in relation to others '."
vWhile it is not disputed that relations between States may
differ from case to case, nevertheless, to say that the very existence
of a State is a relative matter is confessedly beyond comprehen-
sion.^ Baty justly criticises such an argument as a series of
' metaphysical puzzles '. ' Either a State exists, or it does not;
the opinion of other people on the subject does not alter
the fact.' "
\The anomaly is even more glaring if we speak of recognition
in terms of admission into the international community. How can
we say that a State is a member of that community to one member,
but not to another? Membership is the relation of the member to
the society, and not to its individual members.48* The question is :
at a given time is or is not a particular State a member of the
international community?^ It cannot be answered by a non-
committal ' Both yes and no '.
^Professor Lauterpacht frankly admits the weakness of the
constitutive theory on this point. His defences are: first, that
12 Le Normand, op. cit., pp. 24, 25, 81.
43 Oppenheim, vol. I, 5th ed., p. 121.
" Lorimer, op. cit., vol. I, p. 106.
" Gemma, Les Gouvernements de Fait, 4 Hague Recueil, 1924, p. 297, at p. 333.
46 Kelsen, loc. cit., note 8, p. 14 above, pp. 608-9.
" Ibid., p. 609.
"Baty, op. cit., note 21, p. 15 above, p. 205.
48a [This point was emphasised by the Secretary-General of the United Nations
in his Memorandum concerning the representation of China in the United
Nations at a time when its effective Government was recognised by only
a minority of the Members, United Nations Press Release, PM/1704,
March 8, 1950.]
Theory of Recognition of States 41
it is the imperfection of the international organisation which is
the cause of the divergent timing of recognition; secondly, that
the difficulty of attaining uniformity in the appreciation of State
existence is common to both the constitutive and the declaratory
theoriesT/ These defects, he argues, are not peculiar or inherent in
the constitutive theory; the likelihood of divergent findings can
be expected to be reduced by proper emphasis on the legal nature
of recognition.18 It may be agreed that the absence of a central
international authority in the international community is a
common source of grievance to both theories. But in the present
condition of the international community, the declaratory theory
has the decided merit of not falling into the absurdity of con-
ceiving a State as existent and non-existent at the same time.
Theoretically, at least, a State commences its objective existence
from an objectively ascertainable time. States may be quick or
slow in realising this existence, but they need not deny that the
new State may have existed before they have accorded it
recognition. The divergency of their findings does not affect the
personality of that State.
[From the assertion of the constitutive school that recognition y
is relative, it must follow that no State can claim that it exists in
the absolute sense. As a result, recognition must necessarily be
reciprocal, because, inasmuch as a new State is none the less a
State, it cannot, according to the positivist view, be burdened
with duties to which it has not consented] These doctrines of
relativity and reciprocity of recognition inevitably give rise to an
inextricable maze of astounding absurdities. /§ince no State has
absolute existence, State A has no more right to call State B into
life than has State B to call State A into life. Prior to recognition, ^
they are each non-existent in_the eyes of the other.50! How can
State A claim that it is a member of the international community,
and that, through its recognition, State B also becomes a member?
P6n what ground can State A claim that the law to which it is
subject is the international law, to which State B would have
to be subject after recognition? Supposing two States, neither -*
of which is recognised by any third State, recognise each othef7\
49 Lauterpacht, p. 58.
s°In 1822, De Zea, the Agent of Colombia, offered to 'recognise' all other
existing Governments in return for their recognition of Colombia (Smith,
vol. I, p. 121).
\y
42 Recognition of States
can they both claim to be subjects of international law? 51 Since
mutual recognition is, according to the constitutive theory, the
sole formal criterion of international personality, it would follow
that, though they are not States in relation to other States, they
are nevertheless States in relation to each other. This would
seem to make nonsense of the constitutive doctrine which so
jealously holds recognition as the key to membership in the inter-
national community. It would, moreover, mean the denial of
international law as a universal standard of conduct. (jJince no
State is a member of the international community in the absolute
sense, there can be no real international community, because any
State which has not recognised a particular State may deny that
they both belong to the same community. Consequently, a State
would be free to disregard international law in its relations with
a body which it has not recognised as a State, although the rest
of the world has so recognised it. On the other hand, as would
follow from the constitutive theory, a State, which has
' recognised ' a body as a ' State ', must apply international law
towards it, whether or not the latter conforms to the general
notion of statehoodr] In practice, this has not been the case.
Great Britain has ' recognised ' Johore 52 and Kelantan 53 as-
' sovereign and independent States 7 ; yet it does not seem that
her relations with them are governed by international law.
\Jf, according to the constitutive theory, recognition creates
x/the legal personality of the State, that personality can only come
51 ' Recognition, in order to be definitely effective, must emanate from a govern-
ment which is itself recognised ' (Moore, Digest, vol. I, p. 73). Le Normand
does not seem to exclude the possibility of unrecognised States recognising
each other, although he believes it is rarely done (pp. cit., p. 280).
In 1920, the Soviet Government recognised the Baltic States, to which
the Allied Powers took exception on the ground that the Soviet Government
was itself not recognised ([see the Colby Note,] U.S. For. Rel. 1920, III, 463).
' Manchukuo ' and General Franco recognised the Italian Empire over
Ethiopia (15 Bulletin of International News, 1938, p. 437). 'Manchukuo'
also recognised 'Slovakia', June, 1939 (23 A.J.I.L., 1939, p. 761). ['Man-
chukuo ', ' Croatia ', ' Burma ', ' the Philippines ', and ' Free China * all recog-
nised the ' Provisional Government of Free India ' in October, 1942 (Green,
The Indian National Army Trials, 11 M.L.R., 1948, p. 47, at p. 48).]
52Mighell v. Sultan of Johore [1894], 1 Q.B. 149, 150; [cf., also, decision of
Gordon-Smith, J., in the Singapore High Court concerning the status of
Johore subsequent to the Malayan Union Order in Council, 1946, and the
Federation of Malaya Order in Council, 1948, Abubakar v. Sultan of Johore
(1949), .15 Malayan Law Journal, 1949, p. 187, sustained on appeal, 16 ibid.,
1950, p. 3].
" Duff Development Co., Ltd. v. Government of Kelantan [1924], A.C. 799.
See below, pp. 251-3.
Theory of Recognition of States 43
into existence after the consummation of the act of recognition.
This point seems to have been overlooked by constitutive writers
who regard recognition as a reciprocal act or an act in the nature
of an agreement." These writers fail to show how an entity
having no juridical existence can perform a juridical act which pre-
supposes its personality .^Professor Kelsen compares such a feat
to the attempt of Baron Munchhausen to extricate himself with
the aid of his pigtail from the morass into which he had fallen."
Upon his conversion to the constitutive view, Professor Kelsen
took pains to avoid this error of which he is so acutely aware.
First, he writes, the new State must proclaim itself a State and
become a subject of international law for itself. Reciprocal
recognition with other States can then take place.57 But this
complicated process does not seem to have succeeded in over-
coming the difficulty which his theory seeks to avoid, because,
even though the new State can create personality for itself, its
personality vis-a-vis other States does not exist by virtue of the
self-recognition. Its position with respect to these States would
be exactly the same as if no self-recognition had taken place,
and the subsequent reciprocal recognition would lead one into
the same error of presupposing the existence of the new
personality.
The alternative doctrine, which has been vigorously put
forward bjQ-'rofessor Lauterpacht, is-te-regard recognition as a
unilateral act of the recognising State7 To the objection that the
unilateral conferment of personality is contrary to the principles
of State autonomy and equality,58 Professor Lauterpacht replies
that those principles of autonomy and equality apply only in the
relations between States already in existence. Recognition,
according to him, does not leave any permanent stigma of sub-
54 For instance, Le Normand, op. cit., p. 32; Anzilotti, op. cit., note 7, p. 14
above, vol. I, p. 161; Redslob, loc. cit., note 9, p. 14 above, p. 432; Kelsen,
loc cit., p. 609; Graham, In Quest of a Law of Recognition, 1933, p. 17.
55 This criticism is raised by Kelsen, Kunz, Diena and Cavaglieri, cited in
Lauterpacht, p. 40. This objection applies also to Verdross's theory
that recognition is bilateral, though not necessarily reciprocal (Ver-
dross, loc. cit., p. 329). Anzilotti, however, retorts that the same
difficulty would be encountered by conceiving recognition as a unilateral
act, for existing States cannot likewise manifest a juridical will to a new
State which is outside the juridical order (Anzilotti, op. cit., vol. I, p. 162).
56 Kelsen, note 21, p. 15 above, p. 269.
57 Kelsen, loc. cit., note 8, p. 14 above, p. 609.
58 This point has been raised by Carnazza-Amari against constitutivism in
general, cited in Le Normand, op. cit., p. 41.
44 Recognition of States
ordination on the new State, ' for recognition, once given, creates
an obligation which like any other international obligation owes
its continued binding force to international law and not to the will
of the State concerned \58 As to a second objection that recogni-
tion, even as a unilateral act, in order to produce juridical effects,
must have reference to an entity possessing legal existence, it is
explained that an act of recognition is an act by which the
international legal system, through the agency of the existing
States, ' extends its orbit to cover a new component part of the
international society V
(_But the explanation still leaves unexplained how recognition
by means of a treaty can be considered a unilateral actA Professor
Lauterpacht argues that recognition, though contained in a treaty,
does not constitute the contractual content of the treaty; it is a
unilateral act which is placed on record in the treaty. The Anglo-
American Treaty of 1783 61 and the Portuguese-Brazilian Treaty
of 1825 62 are put forward as examples.63 It is doubtful, seeing
that the unilateral act of recognition which creates the personality
of one of the contracting parties and the contract proper are
embodied in the same document, whether it is possible to say that
the one takes place before the other. And it might also be asked
whether the very fact of entering into negotiations has not already
raised the presumption of the legal existence of the parties.61
Suppose such a treaty, after signature, fails to secure ratification,
would it be possible for one party to say that, the treaty being
without effect, the personality of the other party must therefore
be deemed to be non-existent? 65 It seems that the answer should
50 Lauterpacht, p. 58.
60 Ibid., p. 57.
61 1 Treaties, p. 586.
62 12 B.F.S.P. (1824-5), p. 675.
63 Lauterpacht, pp. 56-7.
64 See below, pp. 194-6.
63 See Republic of China v. Merchants' Fire Assurance Corporation of New York,
30 F. (2d) 278 (CCA. 9th, 1929) (or Hudson, p. 86). [During the hearing
the Court received a telegram from the Secretary of State ' that the Minister
Plenipotentiary and Envoy Extraordinary of the National Government of
China has been officially received by this Government, so that the recognition
of the former is now settled beyond question ' (at p. 279). This did not
affect the Court's finding that the treaty itself (Treaty of Commerce, 1928),
although unratified, contained a ' clear recognition ' (ibid.).] Although this
was a case of the recognition of a government, the principle involved is
the same. In a letter of December 31, 1824, to Bosanquet, Canning, how-
ever, said that a commercial treaty, when ratified, constitutes recognition
(Smith, vol. I, p. 150).
Theory of Recognition of States 45
be in the negative. The personality of the new State is presumed
in the negotiation and the subsequent conclusion of the treaty.
It does not depend upon any particular stipulation in the treaty,
whether bilateral or unilateral. The eventual invalidity of the
treaty does not affect the existence of the personality of the
contracting parties.
This argument applies with even greater force in the case of
a treaty which contains no express reference to recognition, the
parties entering into contractual relations as if taking the person-
ality of each other for granted. Can it be said that, in such a case,
there is also a prior unilateral act of recognition before entering
into contractual relations? The same considerations apply to
other implied forms of recognition, such as the accrediting of
diplomatic representatives,651 and the issue of exequaturs to the
consuls of the new State.65" These cannot be done without assum-
ing the existence of the other party. The reason, in fact the only
reason, why recognition can be implied is that the act in question
can, by necessary implication, presuppose the existence of the
State.66
[The unilateral act theory is open to the further objection that
it is irreconcilable with the doctrine of relativism, which is the
inevitable outgrowth of the constitutive theory so long as recogni-
tion is performed by individual States. The unilateral act theory
cannot function unless it is presumed that the recognising State
is an international person in the absolute sense, Otherwise, being
non-existent itself in the eyes of the unrecognised State, its investi-
ture of personality will have no meaning?) The treaties mentioned
*5a [In this connexion reference should be made to the acceptance by Great
Britain of an Israeli Minister in 1949. It was then pointed dipt that this
acceptance in no way altered the nature of the British de facto recognition
of Israel, The Times, May .14, 1949.]
65b [It is doubtful, however, whether the acceptance by the United States in
1950 of a German consul-general constituted any recognition of the Federal
Republic of Germany, United States Information Service, Daily Wireless
Bulletin, No. 1203, February 11, 1950.]
66 British recognition of the Latin American States took the form of the con-
clusion of commercial treaties with no special reference to recognition. In
insisting on this form of recognition, Canning said that the designating of
the plenipotentiary of the new State as a plenipotentiary of an independent
State is as good as saying that ' His Majesty recognises '. He thought this
mode of recognition 'was better calculated for the . . . dignity of the
State to be recognised . . . because the assumed independence is therein
admitted, not created' (Canning to Sir Charles Stuart, December I, 1825,
in Webster, Britain and the Independence of Latin-America, 1812-1830, 1938,
vol. I, pp. 291-2). As to implied recognition in general, see below, p. 192 ff.
V
t-'
46 Recognition of States
above provide only for the recognition of the United States and
Brazil by Great Britain and Portugal, respectively, and not vice
versa." They prove, in fact, that recognition is unilateral; but
they also prove that the existence of Great Britain and Portugal
are objective and absolute. [A more recent example is to be
found in the Treaty of General Relations between the United
States and the Philippine Republic, 1946. This Treaty was signed
by the two States ' animated by the desire ... to provide for the
recognition of the independence of the Republic of the Philippines
as of July 4, 1946, and the relinquishment of American
sovereignty over the area '. By Article I, ' the United States
agrees to recognise, and does hereby recognise, the independence
of the Republic of the Philippines as a separate self-governing
nation '.68 A complication was introduced, however, by Article 8,
which provided for the entry into force of the Treaty only on the
exchange of ratifications, and this did not take place until
October 22, 1946.09]
Ljhe unilateral act theory is also in conflict with positivism.
Positivism requires that no State should be subject to any law
without its consent. This consent would be impossible if a State
becomes subject to international law only through the unilateral
act of another.
The unilateral act theory, although incompatible with the
constitutive theory, is, however, compatible with the declaratory
theory. If the function of recognition is to affirm and to accept
a certain state of facts, it cannot but be a unilateral act) Thus,
declaratory writers, such as Erich, Nys and Moore, all regard
recognition as unilateral.70
§ 3. Modifications of the Constitutive Theory
The traditional formulation of the constitutive theory attributes to
recognition three important characteristics, namely, creativeness,
arbitrariness and relativity ."A Recognition being creative, a State,
"See Article 1 of the Anglo-American Treaty, 1783 (1 Treaties, p. 587): 'His
Britannic Majesty acknowledges the said United States ... to be free
sovereign and independent States; that he treats with them as such . . .';
Article 1 of the Portuguese-Brazilian Treaty of 1825 (12 B.F.S.P., 1846, p. 675).
68Dept. of State, Treaties and Other International Acts Series, 1946, No. 1568.
69 [Briggs, Recognition of States; Some Reflections on Doctrine and Practice,
43 A.J.I.L., 1949, p. 113, at pp. 115-6.]
70 Erich, loc. cit., p. 457; Nys, loc. cit., p. 295; Moore, Digest, vol. I, p. 73.
Theory of Recognition of States 47
before recognising a new community, owes no duty to it whatso-
ever, not even the duty to accord recognition. It follows from
this discretionary nature of recognition that recognition can only
have effect as between the parties, for the simple reason that other
States are similarly free to decide whether or not to recognise.701
The fantastic consequences and the logical absurdities to which
these tenets of constitutivism give rise have led its supporters to
doubt whether such a theory can be defended without serious
modifications. Two modifications advanced by Professors
Kelsen and Lauterpacht demand special attention.
In a recent article in the American Journal of International
Law,71 (Professor Kelsen] abandons his former declaratory view v
and declares himself in favour of the constitutive theory. The
original and anomalous feature of his doctrine lies in distinguish-
ing itixecognition two distinct acts : one political and one legal.] \/
The political act of recognition indicates the willingness of the
recognising State to enter into formal relations with the State
to be recognised. Such an act is discretionary and gives rise to
no legal consequences. It presupposes the legal existence of the
State to be recognised and is therefore declaratory in character.
?The legal act of recognition, on the other hand, is the determina-
tion by the recognising State that in a given case a State in the
sense of international law exists. It is ' the establishment of a /
fact; it is not the expression of a will. It is cognition rather than
re-cognition '™J But the determination of fact entails legal
consequences. ^Its effect is that the recognised community
becomes in its relation with the recognising state itself a state, v
i.e., a subject of rights and obligations stipulated by general
international law.' " Recognition is therefore constitutive
and relative. ' Existing ' States are empowered, but not obliged,
to recognise when the conditions for recognition are
satisfied, although they may not recognise if the conditions are
not satisfied. J
Professor Kelsen intends, perhaps, to bring about a recon-
70a [See, for example, the statement made by the representative of the United
States to the Security Council in connexion with the de facto recognition
of Israel, Security Council Official Records, No. 68, 3rd Year, p. 16.]
71 Recognition in International Law, Theoretical Observations, 35 AXIL., 1941,
p. 605.
72 Ibid., p. 608.
73 Ibid.
48 Recognition of States
ciliation between the constitutive and the declaratory views, as
his dualist conception of a political and a legal act of recognition
corresponds to the conceptions of recognition held by the two
schools. But the fact is not lost upon even a casual reader that
his real emphasis is upon the legal act alone. It is not clearly
indicated how the two acts operate as distinct acts. It would seem
that, as far as the existence of the legal personality is concerned,
the legal act is all that matters. The traditional formulation
of the constitutive theory, though with far less emphasis, seems
also to imply the political aspect of recognition.74 The mere
emphasis of this aspect does not seem to have the desired effect
of correcting the evils attending the traditional constitutive
theory.
(As far as the legal act of recognition is concerned, Professor
Kelsen's doctrine has little to differentiate it fundamentally from
the traditional viewT^ Inasmuch as he insists that the recognising
State should be free to determine not only the fact of the fulfilment
of the conditions of statehood, but also the conditions themselves,
he must be considered as inclining rather to the extremist side of
the orthodox view. In criticising his theory, Professor Brown
points out that the basic principle at stake is the abhorrence of
the legal system for a legal vacuum. Legal relations, as recent
experience indicates, must continue, even where there is no
recognition." Professor Borchard expresses doubts as to the
existence of the distinction made by Professor Kelsen and whether
it has any practical significance.76 He takes exception, in particu-
lar, to Professor Kelsen's argument that plunder is theft only
after a court has so pronounced. Here, it may be submitted, lies
a fundamental difference between the constitutive and the
declaratory conceptions. The forcible taking of property may or
may not be robbery, upon which an ordinary citizen may, indeed,
find it difficult to judge. But if the court decides that it is robbery,
the court does not ' create " the illegality of the act. The act is
robbery not from the moment when the court pronounces its
judgment, but from the moment the act was committed. Like-
74 Oppenheira, for example, says that, through recognition, a State 'acquires
the capacity to enter into diplomatic relations and make treaties with the
States which recognise it ' (Oppenheim, vol. I, 5th ed., p. 121).
75 The Recognition of New Governments, 36 A.J.I.L., 1942, p. 106.
76 Recognition and Non-Recognition, ibid., p. 108.
Theory of Recognition of States 49
wise, if a court pronounces that a person has reached majority,
it merely says that a certain length of time has passed from the
moment of his birth. It is the fact of a prescribed passage of time
which produces legal consequences, and not the ascertainment of
it. The pronouncement of the court might conceivably be made
many years after the date of majority, but the legal consequences
of majority do not date from the pronouncement. By analogy,
a State exists as an international person as soon as it has fulfilled
the requirements of statehood. The fact that States cannot have
the same faculty for appreciating the fact of the fulfilment of
these requirements is no reason for denying that there is an
objective point of time at which such fulfilment takes place.
Third States may be unable or unwilling to acknowledge this fact,
but they certainly cannot alter it to suit their ignorance, caprice or
self-interest.
It may be interesting in this connexion to compare a distinc-
tion drawn by a declaratory writerAProfessor Cavare," who
divides recognition into two stages: a sociological recognition
and a political recognition.78 The source of juridical capacity,
he argues, lies in social necessity. When a body is socially
organised as a State, it becomes Jeeally so. Recognition is, there-
fore, declaratory and automatical On the other hand,[political
recognition is a political demarche and is, therefore, discretionary.
A difficulty which arises here, as well as in Professor Kelsen's
theory, is^how can one kind of recognition take place without
the other ?J In practice, when a State says : ' I recognise you ', it
must have political consequences. The ' legal ' or ' sociological '
recognition follows as a matter of course. There cannot be a
separate act of ' legal ' or ' sociological ' recognition. (To say
that a State has received * sociological ' recognition, is to say that
there has been no overt act of recognition, but merely the non-
denial of the juridical consequence of a sociological fact. This
is why juridical consequences can, nevertheless, flow from the
existence of a State which has been refused recognition. Any
reference to the ' act of recognition ' must necessarily mean the
" Cavare\ loc. cit., p. 69 et seq.
78 The distinction between ' political ' and ' judicial ' recognition put forward
by Professor Doukas is substantially the same as Cavar^'s distinction
(Doukas, The Non-Recognition Law of the United States, 35 Mich. L.R.,
1937, p. 1071. at p. 1078).
50 Recognition of States
political act, which is declaratory. The creation of rights and
duties are effected by the operation of the law itself upon the
basis of facts, not the work of any third State/
§ 4. The Duty of Recognition
_The theory advanced by Professor Lauterpacht is an endeavour
to strengthen the constitutive view by ridding it of its most
objectionable feature, namely, the arbitrary character of
recognition." J The essence of this theory is best expressed in the
words of its author :
VTo recognise a community as a State is to declare that it
fulfils the conditions of statehood as required by international
law. If these conditions are present, the existing States are under
the duty to grant recognitionT} In the absence of an international
organ competent to ascertain and authoritatively to declare the
presence of requirements of full international personality, States
already established fulfil that function in their capacity as organs
of international law. In thus acting they administer the law of
nations. This legal rule signifies that in granting or withholding
recognition States do not claim and are not entitled to serve ex-
clusively the interests of their national policy and convenience
regardless of the principles of international law in the matter.
( Although recognition is thus declaratory of an existing fact, such
^declaration, made in the impartial fulfilment of a legal duty, is
constitutive, as between the recognising State and the community
so recognised, of international rights and duties associated with
full statehood.')^
The evils of basing recognition upon political considerations
are too well known to require emphasis. They occur in one of
two forms : either the accordance of recognition where the condi-
tions of statehood have not yet been satisfied, or the withholding
of recognition where these conditions have been satisfied. The
first, that is, premature recognition, though resorted to by States
79 Lauterpacht, p. 62.
80 Ibid., p. 6. See also Bluntschli, op. cit., ss. 35-6. [Professor Lauterpacht also
contends that, provided certain conditions are fulfilled, there is a duty to
recognise a government, ' Recognition of Governments', The Times, January 6,
1950. This article should be read together with Dr. Schwarzenberger's letter
in reply, The Times, January 9, 1950. Professor Lauterpacht's article was
intended to explain the British recognition of the Communist Government in
China, but in the Canadian House of Commons it was quoted in support
by the advocates and opponents of such recognition, March 3, 7, 1950
(90 Canadian Hansard, Nos. 12 and 14).]
Theory of Recognition of States 51
on numerous occasions, has received the almost unanimous
condemnation of international lawyers.81 Inasmuch as the
doctrine of premature recognition denies the absolute creative
force of recognition, it must be considered as opposed to the con-
stitutive theory.82 As to the second point, that of retarded
recognition, opinions are divided. These transcend the line
dividing the constitutive and the declaratory schools, but the
reasons for holding similar views by writers of opposing schools
are, however, entirely different.
The attitude of the constitutive writers in denying the legal
duty of recognition is easy to understand. Following the positivist
principle, a State cannot permit duties to be thrust upon it as a
result of the emergence of a new political community.83 More-
over, since State personality does not exist prior to recognition,
there is no one to whom a foreign State owes a duty of recogni-
tion.81 However, where there exists a treaty obligation to grant
recognition, as, for instance, the obligations under Articles 81 and
87 of the Treaty of Versailles, recognition becomes a duty, though
the obligation is owed to existing States, not to the new community
to be recognised.85
The reason for declaratory writers holding this view, as
pointed out by Professor Lauterpacht, is that they regard recogni-
tion as a formality or the expression of the wish to enter into
diplomatic relations.88 There is certainly no duty under inter-
national law to enter into diplomatic relations. The Institute of
International Law declares that recognition is a ' free act '. Then
it goes on to say that ' The existence of a new State with all the
81 Lauterpacht, pp. 94-5. Liszt, however, considers premature recognition not
as an illegal act, but as an unfriendly act towards the parent State (Liszt,
op. cit., p. 54; also Anzilotti, op. cit., vol. I, p. 169).
82 See below, p. 54, n. 96. Constitutive writers generally rely upon the con-
tention that foreign States owe a duty to the parent State not to give pre-
cipitate recognition (Lawrence, op. cit., p. 85; Oppenheim, vol. I, 5th ed.,
p. 126. 7th ed., p. 124; Liszt, op. cit., p. 54). Redslob admits that a premature
recognition produces no creative effect (loc. cit., n. 9, p. 14 above, p. 440).
83 Lauterpacht, pp. 63-64.
81 Le Normand, op. cit., p. 55. Writers who deny the legal duty of recognition
include: Liszt, op. cit., p. 54; Anzilotti, op. cit., vol. I, p. 165; Kelsen, loc. cit.,
p. 610: Hatschek, An Outline of International Law, 1930, p. 109; Dana's
Wheaton, s. 26, p. 34; Oppenheim, vol. I, 5th ed., p. 120 [(ex., however,
7th ed., vol. I, pp. 122-123)]. Kelsen, however, points out that, as an
exceptional case, where a new State accedes to a treaty open to limitless
accession to which the recognising State is a party, recognition becomes a
duty (loc. cit. p. 614).
85 Oppenheim, vol. I, 5th ed., p. 120, n. 2.
86 Lauterpacht, p. 62.
52 Recognition of States
juridical effects which are attached to that existence, is not affected
by the refusal of recognition by one or more States '."
^Arbitrariness of recognition becomes unjustifiable only when
recognition is conceived as constitutiveA International law does
not stipulate as legal duties the establishment of international
relations between States or the expression of approbation and
confidence by one State in the conduct of another. These are
political in nature and cannot be compelled.V_The political nature
of recognition is, therefore, quite consistent with the declaratory
theory.^}
What seems to be of greater difficulty to the declaratory
theory is the advocacy by some of its supporters of the obligatory
nature of recognition. Hyde, for example, writes : ' When a
country has by any process attained the likeness of a State and
proceeds to exercise the functions thereof, it is justified in demand-
ing recognition.' S9 Sir John Fischer Williams, while denying the
legal duty of recognition on the ground that there can be no legal
claim for damages on account of non-recognition, makes what
seems to be the contradictory remark that ' the Family of Nations
is not a club where a blackball may be given without responsibility
and may exclude for no sound general reason a candidate for
membership '.90 Hall also says that ' no state has a right to with-
hold recognition when it has been earned '."
This apparent conflict with other declaratory writers calls for
an explanation. Although the act of recognition does not create
the personality of the State, it is nevertheless of great importance.
It opens the avenue for international relations between the
new State and the recognising State, and dispels any doubt which
the recognising State may have privately entertained as to the
legal existence of the new State, thus lending certainty to the treat-
ment it would accord to the new State and its nationals^ As the
treatment of one State by another is regulated by international
87 Article 1 of the Resolution of 1936, 30 A.J.I.L., 1936, Supplement, p. 185.
88 Writers holding this view include: Brierly, op. cit., note 17, p. 15 above,
p. 124; Fauchille, op. cit., vol. I, Pt. I, pp. 317-8; Rivier, op. cit., note 23,
p. 15 above, vol. I, p. 57; Nys, loc. cit., p. 294; De Louter, op. cit., note 27,
p. 16 above, vol. I, p. 219; Fiore, op. cit., Article 35.
89 Hyde, vol. I, p. 148.
90 Some Thoughts on the Doctrine of Recognition in International Law, 47
H.L.R.. 1933/1934, p. 776, at p. 780.
91 Hall, p. 103. Similarly, Scelle, op. cit., note 20, p. 15 above, vol. I, p. 100;
Lorimer, op. cit., vol. I, p. 104; Borchard, loc. cit., p. 110; Fiore, op. cit..
Article 56.
Theory of Recognition of States 53
law, ithe new State is entitled to demand that such treatment be,
accorded to it. It is this treatment which it claims as of right, not
the creation of its personality through recognition]^ If this treat-
ment can be accorded without recognition, then recognition would
not be a legal duty. In practice, States seldom accord such treat-
ment to States which they do not recognise. For this reason, a
demand for recognition is often made in lieu of the demand for
proper treatment, for the latter implies the former.
Since recognition is the usual condition for treating a new
State according to international law, to regard it as a duty must
be considered as generally conducive to better understanding
between States. But folder the constitutive theory, the mainten-
ance of this view is confronted with logical difficulties. One
question naturally suggests itself : if recognition — in the constitu-
tive sense — is a legal duty, to whom is that duty owed? It cannot
be to the new State, since it has not yet begun to exist.92 To the
international community as a whole?93 The international com-
munity cannot be deemed to be entitled to the right of having a
new member recognised unless it or each of its members is entitled
to claim from the recalcitrant State the performance of the duty
of recognition. That claim cannot be made unless it can be
established that, in point of fact and according to the notion
prevailing in that society, the conditions of statehood are present.
But if this fact can be established, the recognition by any particu-
lar State would become tautologous. For, by the very establish-
ment of that fact, the possession of personality by the State
would have also been established, and there would consequently
be no longer any need for creative recognition by any particular
State. In other words, the international community can only
claim the duty of recognition of a new State from a member State
when, in the mind of the international community, the new
State-person is objectively in existence. But then, there is nothing
left for the recognising State to ' create ' by its recognition. If,
on the other hand, the recognising State is faithful to its duty and
accords recognition the moment a new State satisfies the require-
"2 Redslob, loc. tit., p. 434. Contra, Lauterpacht, who argues that, if the con-
ditions of statehood are present, 'although, prior to recognition, the com-
munity in question does not possess the ordinary rights of statehood, it is
entitled to claim recognition '. This claim becomes enforceable after the
State has been recognised (Lauterpacht, pp. 74-5, 191, 192).
S3 Lauterpacht argues that since a society cannot exist without members, the
creation of new members is a duty of a member to the society (ibid., pp. 74, 78).
v/
54 Recognition of States
ments of statehood, it would be very difficult to say whether the
personality of the new State is due to the creative force of the
recognition or to the creative force of the presence of the
requirements of statehoodT)The declaratory writers might, with
equal justice, claim that the recognition thus accorded is merely
declaratory and not constitutive. Professor Lauterpacht is
undoubtedly aware of the strength of this logic when he says
' for there is but one step — which is certainly not a revolutionary
one — between maintaining that an act is merely declaratory of a
fact of primary importance in the life of a nation and treating
that act as one of legal duty '."*
§ 5. The Conditions for Recognition
It is a matter of general agreement among international lawyers,
including proponents of the constitutive doctrine, that recognition
cannot be divorced from fact.95 This principle manifests itself in
two ways. First, recognition must not be granted where the
material conditions of statehood are absent. Second, recognition
ought to be granted once those conditions are present. /'Premature
recognition is void "° and constitutes an act of intervention and
international delinquency. 9£D This is common to both the con-
stitutive and the declaratory schools. As to delayed recognition,
the delay must not be such as to prejudice the rights of the new
State under international law.98
What then is this condition of fact which States contemplating
94 Lauterpacht, p. 2.
95 ' Pourtant, la reconnaissance serait une simple constatation de V existence de
I'etat ' (Le Normand, op. cit., p. 36). ' . . . recognition is thus declaratory
of an existing fact' (Lauterpacht, p. 6). Similarly, Liszt, op. cit., p. 53;
Kelsen. loc. cit., p. 608; Williams, Recognition, 15 Grotius Transactions, 1929,
p. 53, at p. 56; Baty, op. cit., p. 204; Dana's Wheaton, p. 35, n. 15, p. 41, n. 16;
Goebel. op. cit., p. 48.
86 ' . . . mais en droit la reconnaissance prematuree n'en reste pas moins un
geste vide . . .' (Erich, loc. cit., p. 478). Similarly, Lauterpacht, pp. 94-5;
Redslob, loc. cit., p. 440.
87 Lauterpacht, p. 95. The recognition of the United States by France is
believed to constitute an intervention (Paxson, The Independence of the South
American Republics, 1903, pp. 26, 32; Goebel, op. cit., pp. 72-93). As to
the recognition of Panama by the United States, see ibid., pp. 213-7. See
also, below, pp. 85-6.
98 [Cf. in this connexion the case of the Bergen Prizes (1779), in which the
United States claimed compensation from Denmark in respect of the latter's
non-recognition of American belligerency in the War of Independence (Moore,
International Arbitrations, vol. 5, p. 4572). Although this was a case of
non-recognition of belligerency, Professor Lauterpacht suggests it is an 'in-
structive example ' in relation to the non-recognition of States (Lauterpacht,
p. 75).]
Theory of Recognition of States 55
recognition are compelled to take into account? What are the
material conditions which render recognition both permissible
and obligatory? Some writers hold the extreme view that
recognising States are free to determine those conditions for
themselves." This is clearly inadmissible, as it would render any
formulation of the principle of recognition impossible. If
recognition is to be based upon facts, it is necessary to state what
these facts are. fS.s recognition is the recognition of State per-
sonality, the conditions for recognition must naturally be those '
essential requirements of statehood as are laid down by inter-
national law^ Writers differ as to the precise character of these
requirements.1 The conditions laid down by Oppenheim seem
to be a fair expression of the more generally accepted view. (These
are (a) a people, (b) a country, (c) a government and (d) a
sovereign government.^
People. To constitute a State, there must be an aggregate of
individuals living together in a community. It does not matter
whether they are of the same race, colour or creed. A community
is not prevented from becoming a State because it includes a
minority population.3 The suggestion that recognition should be
based upon the principle of nationality4 is inadmissible. As the
State is but one of many institutions for the attainment of denned
objects, it is impossible for it to coincide with all the divisions
representing various kinds of human interests. This is not to
minimise the strength of national sentiment nor the importance
of the principle of national self-determination. But heterogeneity
of population alone does not of itself constitute an impediment to
statehood.
99 Le Normand quite logically maintains that, since recognition is not obliga-
tory, there is no need to state the conditions for recognition. He, neverthe-
less, lays down as the minimum condition : that a State must ' se present
comme sujet de droit ' (op. cit., pp. 60-1). Likewise, Kelsen maintains that,
theoretically, States are free to determine the conditions of statehood, but
rules have been developed laying down these conditions (loc. cit., p. 610).
Lorimer, while not expressing approval, seems to consider this as the pre-
vailing practice (op. cit., vol. I, p. 107).
1 See differing enumerations by the following writers: Hall, p. 18; Fauchille,
op. cit., vol. I., Pt. I, p. 224; Erich, loc. cit., pp. 474-6; Lauterpacht, pp. 26-30;
Lorimer, op. cit., vol. I, p. 109 et seq.; Brierly, loc. cit., note 20, p. 15 above,
p. 50; Scefie, op. cit., note 19, p. 15 above, vol. I, pp. 74-6. See also the
Montevideo Convention, 1933, Article 1 (loc. cit., p. 75).
'Oppenheim, vol. I, p. 114.
3 Fauchille, op. cit., vol. I, Pt. I, pp. 223-4.
4 For example, Pradiere-Fod^r^ and Carnazza-Amari cited in Le Normand,
op. cit., PP- 261-3.
56 Recognition of States
Country. The people must be settled in a denned territory.
A wandering tribe does not constitute a State.5 It is, however, not
necessary that the frontiers of a new State should be definitely
delimited before it can acquire statehood. Most of the new States
which arose after the First World War were recognised before
their frontiers were finally settled." [Similarly, after the General
Assembly of the United Nations resolved, on November 29, 1947,
to partition Palestine,7 and within one year of the termination of
the Mandate in May, 1948, the State of Israel had been
admitted to the United Nations and recognised either de
facto or de jure by more than forty States, despite the non-
demarcation of its frontiers.8] The promise of a new State to
accept the frontiers later to be determined in a particular manner
is only a form of conditional recognition, and has no effect upon
the existence of that State.9 The possession of territory is of such
fundamental importance for the constitution of a State that it is
suggested by some writers that a change of territory constitutes
a change in the essence of that State.10 Some changes may be so
drastic, as in the case of a dismemberment, that it is doubtful
whether any of the divided parts should be considered as the
continuation of the original State. Baty, for example, argues
that the Soviet Union or the Austrian Republic should not be
considered the same States as the Russian or the Austro-
Hungarian Empires, any more than should the Baltic States or
5 Oppenheim, vol. I, p. 1 14.
' See the decision of German-Polish M.A.T. in Deutsche Continental Gas-
Gesellschaft v. Polish State (9 M.A.T. (1929-1930), p. 336, at pp. 343-346,
or Annual Digest, 1929-1930, Case No. 5, p. 15). In February, 1919, the
United States hesitated to recognise the Czechoslovak Republic on the ground
that the latter had no definite frontiers (Hackworth, vol. I, p. 208). But
the recognition took place on June 2, 1919 (ibid.), before the actual deter-
mination of the frontiers by the Peace Treaties (the Treaty of Versailles was
signed on June 28, and the Treaty of St. Germain on September 10 of that
year). However, the reason for the refusal of the Allied Powers to recognise
Lithuania was that, pending the Vilna dispute, her frontiers were not yet
settled (Graham, The Diplomatic Recognition of the Border States, 1935,
pp. 290, 444).
'[Resolution 181 (2), U.N. Doc/A.519.]
8 [The United States recognised Israel de facto on May 14, 1948 (U.S. Informa-
tion Service, Daily Wireless Bulletin, No. 683), and de jure on January 29,
1949 (Dept. of State Wireless Bulletin, No. 25). Great Britain afforded de
facto recognition on January 29, 1949 (Foreign Office Press Release, January
29, 1949). With regard to Israel's admission to the United Nations, see
Green, Membership in the United Nations, 2 Current Legal Problems, 1949,
p. 258, at p. 274.]
9 See below, p. 266, n. 10.
10Fricker even thinks that, by the cession of Alsace Lorraine to Germany,
the French have formed a new State (Le Normand, op. cit., p. 257).
Theory of Recognition of States 57
Czechoslovakia.11 However, there is a strong body of opinion
in favour of the view that, so long as the territory of the old State
has not been completely absorbed by the new State or by other
States, it does not become extinct.12 [Thus, in August, 1947,
when the Empire of India was divided into the Dominions of India
and Pakistan the United Nations regarded the new Dominion of
India as continuing the personality of the Empire and remaining
as an original member of the United Nations.121 Pakistan, on the
other hand, was regarded as a new State, and had to apply for
membership.12b] In cases like this, unless the territory of the old
State is completely lost, it is probably necessary, in determining
whether the State identity has been preserved, to take into
consideration other factors, such as the retention of any particular
section of the territory or population most intimately connected
with the history of the State.13
Government. The people in a definite territory must have a
government enjoying the habitual obedience of the bulk of the
population. Only if a community is internally organised can it
possess external personality in the international sphere. Canning
considered the existence of an effective government as a necessary
condition for the recognition of the Latin American States.11
In 1875, the United States refused to recognise Cuba on the
11 Baty, op. cit., pp. 228-9; same, Divisions of States; Its Effects on Obliga-
tions, 9 Grotius Transactions, 1924, p. 119, at pp. 120-1. This contention
also applies to the Ottoman Empire. Similarly, Hall, p. 22, n. 2. See below,
p. 100.
12 Oppenheim, vol. I, 5th ed., pp. 143, n. 1, 145; Moore, Digest, vol. I, p. 248;
Brierly, loc. cit., pp. 51-2. In German Government y. Reparation Commis-
sion (1924), a Special Arbitral Tribunal held that the Treaties of St. Germain
and Trianon were based upon the theory that Austria and Hungary, parties
thereto, represented the former Austro-Hungarian Monarchy (1 Reports of
International Arbitral Awards, p. 429, at pp. 440-1). In Billig v. Handelsven-
nootschap onder de Firma S. Einhorn's Sonne (1931), the District Court of
Amsterdam held that the Austrian Republic was party to a convention signed
by the Austrian Monarchy {Annual Digest, 1931-1932, Case No. 18). The
same Court also held the Turkish Republic to be the same person as the
Turkish Empire (ibid., 1925-1926, Case No. 26). [Professor Borel, sole
arbitrator, affirmed in the Ottoman Debt Arbitration (1925) that the Turkish
Republic enjoyed the same international personality as the Ottoman Empire,
' en droit international, la Republique turque doit etre consideree comme
continuant la personalite de I Empire Ottoman ', 1 Reports of International
Arbitral Awards, p. 529, at p. 573.] The British official view regards Austria
and Hungary as ' direct successors ' of the Empire (McNair, Law of Treaties,
1938, p. 427). See also below, p. 100.
12a [Schachter, The Development of International Law Through the Legal
Opinions of the United Nations Secretariat, 25 B.Y.I.L., 1948, p. 91, at
pp. 94-5, 102-6.]
12b [Green, loc. cit., p. 269.]
13 Brierly, loc. cit., pp. 51-2.
11 Webster, op. cit., n. 66, p. 45 above, vol. I, p. 435.
58 Recognition of States
ground of the lack of organised government.15 [In 1949, the
United Kingdom extended de facto, and the United States de jure,
recognition to the State of Israel after popular elections had been
held in that country.16] In 1920, the Committee of Jurists of the
League of Nations, which was consulted on the legal aspect of
the Aaland Islands, was of opinion that, despite recognition by
Soviet Russia and numerous other States, Finland was not, for
want of a settled and orderly government, at the crucial date a
State in contemplation of international law. It said in its report :
' these facts [i.e., facts of recognition] do not suffice to prove that
Finland, from this time onwards, became a sovereign State '." In
1931 the Permanent Mandates Commission of the League sug-
gested that the principal condition under which a territory under
mandate can become independent is its possession of an effective
government.18
Sovereign government. Sovereignty implies independence,
independence not only of the parent State, but also of all other
States. The sovereign State must possess a power, autonomous,
undelegated, and distinct from all external powers.19 According
to this test, ' Manchukuo ', although detached from China, was
not independent, because of its subjection to the dominant control
of Japan.20 This equally applies to such creations as Slovakia
and Croatia during the Second World War.21 [In February, 1950,
after the ratification by the French Assembly of a series of
conventions signed by the Emperor Bao Dai and the French High
Commissioner in Indo-China,21" Great Britain 21b and the United
States 21° recognised Viet Nam, Laos and Cambodia as indepen-
13 Moore. Digest, vol. I, p. 108.
16 [Cf. note 8, p. 56 above.]
17L.o.N. Off. J., 1920, Sp. Suppl. Nos. 3, 8.
18L.o.N. Off. J., XII, 1931, p. 2176.
19 Erich, loc. cit., p. 434; The Island of Palmas Case (1928) between the United
States and the Netherlands, decided by the Permanent Court of Arbitration
(Scott, Hague Court Reports, 1916, p. 83, at p. 92). In Duff Development
Co., Ltd. v. Kelantan, Lord Finlay said : ' It is not in the least necessary
that for sovereignty there should be complete independence ' ([1924] A.C.
797, 814). Here his lordship_ was speaking with reference to a dependency,
and may not have been using the term ' sovereignty ' with its full inter-
national law implications. See below, pp. 252-3.
20 Below, p. 299, n. 47.
21 Lauterpacht, p. 28.
Zla[77ie Times, December 31, 1949.]
21i [Ibid., February 8, 1950.]
210 [United States Information Service, Daily Wireless Bulletin, No. 1200,
February 8, 1950.]
Theory of Recognition of States 59
dent, associate States within the French Union. At the
time of recognition it could not be said that these States had
' sovereign Governments ' in the sense in which that term is used
here. ' The conception of " independence within the French
Union ", . . . implies very wide powers of local autonomy
guaranteed by the complete withdrawal of active control by
France, but combined with considerable restrictions on the power
of all three States to control their own relations with the outside
world. ... A qualified right to independent diplomatic
representation in certain countries is . . . conceded.' 21d]
Jhe acceptance of the conditions enumerated above must be
subject to two qualifications : first, that they can only be stated
in general terms; secondly, that they must be attended by a reason-
able degree of permanence. ]
As regards the first point, it is obviously impracticable, for
instance, to prescribe any fixed standard of size and population.
Lorimer suggests the criterion of * the capacity for reciprocating
recognition '." This, however, does not seem to be of any
practical value. In any concrete case we must fall back upon the
prevailing notion of a State. Luxembourg and Liechtenstein
exist23 side by side with China and the Soviet Union. On the
other hand, a band of pirates or outlaws cannot be considered as
constituting a State.24 The Vatican City is probably a marginal
case, in which factors other than material size must have entered
into consideration.25
As regards the second point, it is axiomatic that where a
portion of a State attempts to separate itself from the whole,
recognition must not be accorded while the war is still in progress.
This principle is stated by Sir William Harcourt as follows:
' And a friendly State is bound to exact very conclusive and
indisputable evidence that the sovereignty of a government with
21i[The Times, February 13, 1950.]
22 Lorimer, op. cit., vol. I, p. 133 et seq.
23 Hackworth, vol. I, pp. 48-9. [In December, 1949, the General Assembly of
the United Nations, acting on a recommendation of the Security Council,
adopted a resolution in accordance with Article 93 of the Charter specifying
the conditions on which Liechtenstein might become a party to the Statute of
the International Court of Justice, 7 United Nations Bulletin, 1949, p. 723.]
24 Dana's Wheaton, s. 17 (2).
25 See below, p. 76.
60 Recognition of States
which it has existing relations over any part of its former
dominions has been finally and permanently divested.' 2S
The continuation of the struggle, as Le Normand rightly points
out, is a bar to recognition, not merely because war is the pro-
testation of the old State, but also because it is an obstacle to the
actual existence of the new State." The mere fact of the con-
tinuation of the war is conclusive evidence that the new State has
not ripened into an independent existence, and there is therefore
nothing to recognise. The reason given by the United States for
not recognising the Baltic States in 1920 was that territorial
changes should not be made while Russia was in the throes of
civil war. This implies that, since a state of civil war can only be
temporary, the element of permanence was lacking in the Baltic
situation.28 This principle also explains why a State does not
become extinguished despite complete loss of territory during war.
The existence of the war arrests the passage of time, so to speak,
of the extinctive prescription.29
The introduction of extraneous requirements other than those
stated above, such as the degree of civilisation, the legitimacy of
origin, the religious creed and the political system of the new
community, would shift the basis of recognition from the objective
test of State existence to nebulous, intractable considerations.
Lorimer's doctrine that barbarous and savage peoples, peoples
of certain religious beliefs, intolerant monarchies and republics,
intolerant anarchies, communist or nihilist communities and com-
munities under personal or class governments are not eligible for
recognition on the ground that they are unable to possess a
' reciprocating will ' seems to be contrary to both fact and
principle.30 Bluntschli positively maintains that violence of origin
is no bar to recognition."1
26 Harcourt, Letters by Historicus, 1863, pp. 7-8. Also, Fiore, op. cit., Article
52; Le Normand, op. cit., p. 250.
27 Le Normand, op. cit., p. 249. Also Hall, p. 108; Bluntschli, op. cit., ss. 31, 34.
28 Lauterpacht, p. 11. However, political motive is attributed by Laserson {The
Recognition of Latvia, 37 A.J.I.L., 1943, p. 233, at pp. 241-2). Cf. also, La'nger,
Seizure of Territory, 1947, pp. 22-27.
29 See below, pp. 63-4, 291.
30 Hyde (vol. I, p. 147) and the International Commission of Jurists (Project II,
Article 1, 22 A.J.I.L., 1928, Special Supplement, p. 240) include as a require-
ment of statehood a ' degree of civilisation '. These views have been
criticised as inexact and uncertain by Le Normand (pp. cit., p. 63), and are
feared to lead to arbitrariness and extortion by Lauterpacht, p. 31. Strupp
thinks that civilisation is not a term of international law (Les Regies
Ginirales du Droit de la Paix, 47 Hague Recueil, p. 263, at p. 425).
31 Op. cit., s. 37.
Theory of Recognition of States 61
(Another test of statehood which has been suggested and must
be dismissed as inadmissible is the willingness of the new State to ^.
observe international law.327Le Normand writes:
' Pratiquement, puisque la personnalite de I'etat n'existe pas
avant la reconnaissance et qu'il n'a pas encore juridiquement
vecu, il faut dire que la demande de reconnaissance fait par I'etat
nouveau implique Vadhesion a ces regies et, la reconnaissance
accordee, V obligation pour lui de les observer.' "
This argument is not convincing. In the first place, if a State
has no legal existence prior to recognition, logically it cannot
express any will binding upon the future State-person. Secondly,
even if such an obligation can be incurred, it is a simple promise,
the breach of which is punishable, not because the State has con-
sented to it, but because the State at the time of making the
promise was already under a legal order which makes a breach
of promise unlawful. Thirdly .[since no State can be outside the ^
international society,34 it has no choice not to submit to inter-
national lawv^ The States created in 1919 had no choice what-
ever. Thus, Professor Brierly writes :
' . . . Us [these States] se sont places automatiquement sous le
droit international, sans qu'on leur demanddt ou qu'ils donnassent
leur consentement, et je ne vois pas pourquoi nous lirons dans leur
premier acte official une declaration d'intention sur un point qui
selon toute probability etait absolument absent de leurs
deliberations' "
vlhere seems to be no question that a new State will have to
observe international law. If it refuses, it would be an ordinary v
case of law-breaking like a breach by any established State7\ It
"Harcourt, op. cit., p. 24; Lorimer, La Doctrine de la Reconnaissance, 16 R.I.,
1884, p. 333, at pp. 339-41; Hall, p. 48; Hyde, vol. I, p. 17. Implied in Goebel,
op. cit., pp. 55, 61. This test is included in Article 1 of Project II of the
International Commission of Jurists (22 A.J.I.L., 1928, Supplement, p. 240)
and Article 1 of the Montevideo Convention, 1933 (28 A.J.I.L., 1936, Supple-
ment, p. 75); also Report of Committee of Jurists of Council of League of
Nations, L.o.N. Off. J. (1920), Special Supplement, No. 3, p. 18. See the
application of this test in the recognition of governments, below, pp. 125-7.
33 Le Normand, op. cit., p. 239.
34 See above, p. 36.
S5Westlake, op. cit., vol. I, p. 49; Bluntschli, op. cit., s. 3. See also above,
pp. 36-7.
36 Brierly. Le Fondement, p. 19. Williams is, however, less unequivocal. He
thinks that although a declaration by the new State of the acceptance of
the law ' which already binds them ' is not necessary, yet ' a refusal, expressed
by declaration or by conduct, to accept that law would be another matter '
(Aspects of Modern International Law, p. 28).
62 Recognition of States
is not believed that an expression of the willingness to observe
-international law is necessary. Since, according to Le Normand,
the application for recognition implies such an expression, then it
can be taken for granted that such a willingness is expressed
whenever a State presents itself for recognition.
The acceptance of a set of objective tests for the recognition
of States is highly destructive to the constitutive theory. The
opinion of the Committee of Jurists on the Finnish question " is
remarkably instructive. It brings disillusionment to the belief
that State personality can be created by the sheer will of other
States, including even the parent State. It is the fact that a
community satisfies the requirements of statehood, and not
recognition, which constitutes the State personality.
§ 6. Criticisms of the Declaratory Theory
The declaratory theory may be summarised as follows : where a
community satisfies certain requirements of statehood as laid
down by international law, the law ipso facto attaches to it the
legal quality of personality. Other States should take cognizance
of this fact and treat the new State according to international law.
The most conclusive demonstration of their willingness to treat it
in this way may be given by means of recognition. The failure to
act in accordance with the situation of fact would involve such
consequences and inconvenience as the State injured — either the
parent State or the new State, whichever it may be — may have
power to inflict. Recognition is thus political in the sense that
the recognising or non-recognising State is prepared to accept
the risks and perils of its action or inaction. It is legal in the
sense that to deny without good cause to a new State its right to
be treated in accordance with international law would give just
cause for complaint and would entitle the injured party to such
remedies as may be permitted by international law.
Such a theory is open to strong criticism.
It has been objected to the proposition that every community
upon fulfilling the requirements of statehood becomes auto-
matically an international person, that the analogy is not found in
municipal systems. It is pointed out that in systems of law which
admit the institution of slavery, physical existence does not imply
37 See above, p. 58, n. 17.
Theory of Recognition of States 63
legal capacity. It is therefore argued that the mere physical
existence of a State does not necessarily carry with it full legal
personality.38
The truth is that there can be no ' physical existence ' of a
State independently of its ' legal existence '. A State, as such,
exists only as a legal concept. All legal personalities, including
individuals and corporations, are the creations of law. A human
being has indeed a ' physical existence ' apart from ' legal exis-
tence ', but as a legal person he exists, in the eyes of the law, only
in so far as he conforms to the requirements of the law. A slave,
not conforming to these requirements, is not, legally speak-
ing, considered as ' existing ' at all. Likewise, a body of men not
fulfilling the requirements of statehood, is not a ' State ' in the
true sense of the word. It may ' exist ' as a group, a family, or a
race, but never a State. It is therefore not contended, by those
who support the declaratory theory, that it is the 'physical
existence ' of a State which calls for recognition. If a State exists
at all, it must possess legal existence, which existence gives rise
ipso facto to rights and obligations. This acquisition of person-
ality is in no way different from the acquisition of personality
under municipal systems of law.
[Since the existence of a State is dependent upon the fulfilment
of the conditions stated above, how does one account for the W
continuance of the personalities of States which have been com-
pletely deprived of their territories, such as Belgium and Serbia
during the War of 1914-1918, and Norway, Poland, Greece,
Luxembourg, Yugoslavia and the Netherlands during the Second
World War? Is it not solely upon the continued recognition of
the Allied Powers that these States depend for their existence?
The answer is that war creates a temporary state of thingsT] The
occupation of the territory by the enemy does not confer title upon
the occupant.39 The occupied territory, although for the time
being beyond the actual control of the legitimate sovereign, may
still be considered as constructively under his sovereignty. The
38 Lauterpacht, p. 45; Le Normand, op. cit., pp. 19 et seq.
39 [Cf. Baty, ' hostile occupation acts as a sterilising medium to preserve the
status quo', Canons of International Law, 1930, p. 480. See also Borel,
Arbitrator, in the Ottoman Debt Arbitration, 1925, ' Quels que soient les
effets de I'occupation d'un territoire par ladversaire avant le retablissement
de la paix, il est certain qu'a elle seule cette occupation ne pouvait operer
juridiquement le transfer! de souveraineti ', 1 Reports of International Arbi-
tral Awards, p. 529, at p. 555.]
64 Recognition of States
personality of the State is therefore complete with all its con-
stituent elements."
This principle applies also to the case of Ethiopia, although
this is a borderline case. The military operations were virtually
terminated after the occupation of Addis Ababa by Italian forces
on May 2, 1936, but, despite the Italian decree of annexation
on May 9, Ethiopia's right of membership in the League of
Nations and her right to be represented at League meetings were
nevertheless conceded as late as May, 1938." By that time,
many States had recognised the Italian annexation,12 but the
Ethiopian delegate asserted at the Council Meeting that the
Italian troops were not in complete control of Ethiopian territory.
The British Delegate, Lord Halifax, agreed that resistance was
still continuing in certain parts of the country.43 It thus seems
that the situation which would have justified regarding the
Ethiopian State as extinct was not conclusively established.
While this was so, the benefit of doubt should in fairness have
been given to that State, the victim of aggression, especially
40 Oppenheim, vol. II, p. 342; McNair, Legal Effects of War, 1948, p. 320;
Brown, Sovereignty in Exile, 35 A.J.I.L., 1941, p. 666, at p. 667. This view
is upheld in Naoum v. The Government of the Colony of French West
Africa, French Court of Cassation (1919), Annual Digest, 1919-1922, Case
No. 312; Boliotti v. Masse, Italian Court of Rhodes (1920), ibid., Case No.
318; Commune of Bdcsborod Case, Hungary, Supreme Court (1922), ibid.,
Case No. 316; Czechoslovak Occupation {Hungary) Case, Hungary, Supreme
Court (1922), ibid.. Case No. 317; Republic of Poland v. Siehen, Supreme
Court of Poland (1926), ibid., 1925-1926, Case No. 10. In Del Vecchio v.
Connio (1920), the Court of Appeal of Milan decided that the occupation
of Trieste did not confer sovereignty upon Italy (ibid., 1919-1922, Case
No. 320). But the Court of Cassation at Rome held in Galatioto v. Senes,
1922, that the occupation of Trieste was the recovery of a lost province,
and the sovereignty of Italy was automatically restored (ibid., Case No. 319).
[Similar judgments were delivered during the second World War, cf., for
example, Re Blak's Estate (1944, District Court of Appeal, California), con-
cerning the Netherlands (150 P. 2d 567); Re Skewry's Estate (1944, Surro-
gate's Court, Westchester County, New York),- concerning Poland (46 N.Y.S.
2d 942); and Bercholz v. Guaranty Trust Co. of New York (1943, New York
Supreme Court), concerning France (44 N.Y.S. 2d 148).] This principle
is not believed to be applicable to a body of men claiming to have consti-
tuted a State but not yet having any territory. It is, however, claimed by Hobza
that Czechoslovakia had become a State from the date of her recognition
by France, though her territory was not acquired until some time later (Hobza,
La Republique Tchicoslovaque et le Droit International, 29 R.G.D.P., 1922,
p. 385, at p. 390). See also below, pp. 291, 296-7.
41 Lauterpacht, p. 347; L.o.N. Off. J. (1938), pp. 335, 535; League Documents,
Members of the League and Composition of the Council, September 21,
1938, p. 2.
** See statement of the British Under-Secretary of State in the House of Com-
mons, May 11, 1938 (Pari. Deb., H.C., 5th ser., vol. 335, col. 1608). De jure
recognition by Britain took place in November, 1938 (Haile Selassie v. Cable
and Wireless, Ltd. (No. 2), [1939], Ch. 182). See also Survey of International
Affairs, 1938, vol. I, pp. 144-52, 162, 163, 173.
"Bulletin of International News, vol. XV, pp. 435-7.
Theory of Recognition of States 65
having regard to the international obligations of States, Members
of the League regarding the prevention of aggression and
guaranteeing respect for the territorial integrity of other States."
The revocation of the recognition of the Italian Empire by the
former recognising States " seems to show that so long as military
operations have not been terminated completely and the former
government has not been finally and permanently deprived of all
hopes of restoration, the occupation of the territory by the enemy
cannot be considered as extinguishing the dispossessed State.4"
Despite recognition of the conquest by other States, the existence
of the dispossessed State remains unaffected.
The question is more difficult in the cases of Czechoslovakia,
Albania, Austria and Germany. In all of these, the conquest was
complete, and for a time no government was in existence.
Czechoslovakia and Albania have now been restored; Austria
has been separated from Germany, but it is still under Allied
control; and the reunification of Germany into a single State may
be expected as soon as the peace treaty is signed, [although in
1949 a West German State came into existence,17 to be followed
almost at once by the establishment of an East German State] . It
may be relevant to ask : did these States ever cease to exist? Is
there a legal continuity between the old State and the new when
established? If there is not, these States must be considered as
new entities entirely broken away from the past. If there is, how
can we explain the existence of a State in which one or more of
the essential elements of statehood are absent? As these cases
arose from the abnormal circumstances of war, the application of
principle is bound to be more or less strained, and a more detailed
explanation is called for.
44 Covenant of the League of Nations, Article 10.
40 For British withdrawal of recognition, see Azazh Kebbeda Tesema and
Others v. Italian Government, Palestine Supreme Court (1940) (7 Palestine
L.R., p. 597), Annual Digest, 1938-1940. Case No. 36.
"6 Brown, loc. cit., n. 40, above, p. 667; below, pp. 291, 296-7. The question;
of Ethiopia, as well as those of Czechoslovakia, Austria, Albania and the
Baltic States, involves not simply the existence of States but also the question
of the validity of illegal conquests. As long as international action is being
taken to thwart the conqueror from consolidating his gains, the mere fact
of the loss of territory does not ipso facto entail the extinction of the dis-
possessed State. For a study of this problem from the latter point of view,
see Langer, op. cit., note 28, above, pp. 123-285.
" [The Constitution of the West German Republic was signed on April 23,
1949 (The Times, April 24, 1949); Basic Law for the Federal Republic of
Germany, 1949. See also Schmid, The Work of Bonn, 3 World Affairs (New-
Series), 1949, p. 358.]
66 Recognition of States
Writers are not agreed how far the absence of a government
affects the existence of the State." In 1870 Bismarck refused to
conclude peace with France on the ground that the French State
had ceased to exist owing to the revolution.49 But in the sub-
sequent Treaty of Peace 50 the French Republic was compelled
to accept the responsibility of the defeat and to cede territories
and pay indemnities. Evidently, the legal continuity of the State
person was taken for granted, in spite of the temporary anarchy.
This principle applies in the cases of the annexation in 1939
of Czechoslovakia by Germany and of Albania by Italy. In both
cases the national governments were temporarily dissolved,61
although in the Czechoslovak case the continuity of the State was
carried on by the Czechoslovak National Committee.52 The
conquests were denounced as illegal by the principal Powers, who
refused to accord them recognition.53 The whole situation,
followed closely by the outbreak of the European War in
September, 1939, showed no promise of permanence.54 The
illegality of the original conquests, together with the suspensive
effect of war, must be regarded as having sustained the continuity
of the States despite the temporary absence of their governments.55
48 Lorimer maintains that anarchy dissolves the State (La Doctrine de la Recon-
naissance, 16 R.I., 1884, p. 333, at p. 346). Similarly, Bluntschli, s. 61.
Fiore thinks that State personality may be temporarily split by civil war
(op. cit.. Article 74, p. 98), Contra, Erich, La Naissance et la Reconnaissance
des Etats, 13 Hague Recueil, 1926, p. 431, at p. 476. See below, p. 99.
48Baty, So-called De Facto Recognition, 31 Yale L.J., 1921-1922, p. 470,
at p. 472, n, 5.
so Preliminary Treaty of Peace, February 26, 1871, and Definitive Treaty of
Peace, May 10, 1871 (Hertslet, Map of Europe by Treaty, 1885, vol. 3,
pp. 1912, 1954).
51 Czechoslovakia on March 15, 1939 (Oppenheimer, Governments and Authori-
ties in Exile, 36 A.J.I.L., 1942, p. 568, at p. 570), and Albania on April 16,
1939 (Langer, op. cit., p. 246).
52 Oppenheimer, loc. cit., p. 571; Langer, op. cit., p. 234. An Albanian Govern-
ment was established in November, 1944, ibid., p. 250.
53 The annexation of Czechoslovakia was not recognised by the United States,
France, or the Soviet Union (ibid., pp. 221-2, 232), while the annexation of
Albania was not recognised by the United States (ibid., p. 246). De facto
recognition was, however, accorded by Great Britain in both cases (ibid.,
pp. 224, 229, 248), although de jure recognition was refused where Albania
was concerned (see the statement of the Government in the House of
Commons, May 1, 1939, Pari. Deb., H.C., 5th Sen, vol. 346, col. 1484).
54 For the view that the subjugation of a State cannot be definitive as long
as other States continue to carry on the war, see below, p. 291, n. 16.
55 The position of Czechoslovakia was considered as fundamentally similar ; to
other exiled governments (Langer, op. cit., p. 236). The United States
regarded prior treaties with Albania as continuing in force (ibid., pp. 252-3);
[cf. also Security Council, Official Records, First Year, Second Series, Supple-
ment No. 4, p. 58, and Green, Membership in the United Nations, 2 Current
Legal Problems, 1949, p. 258, at p. 270].
Theory of Recognition of States 67
In the cases of Austria and Germany, however, the circum-
stances were different. The absorption of Austria by Germany
on March 13, 1938, took place with hardly any show of
resistance.56 From then until the German surrender, there was
actually no Austrian Government in existence. No positive effort
was made, either by the Austrians themselves or by foreign
Powers, to constitute an effective challenge to the German
action.57 It is hardly possible to assert, in the face of these facts,
that the Austrian State continued to exist without interruption.
The suggestion has, however, been made that the annexation,
being contrary to Article 80 of the Treaty of Versailles, Article
88 of the Treaty of St. Germain and the Geneva Protocol of
October 4, 1922, was null and void in law.58 This view seems to
have found support in the Declaration of Moscow issued by the
British, American and Soviet Governments, November 1, 1943,
which stated :
' That Austria, the first country to fall a victim to Hitlerite
aggression, shall be liberated from German domination. They
regard the annexation imposed on Austria by Germany on
March 15, 1938, as null and void. They consider themselves as
in no way bound by any change effected in Austria since that
date.' 59
If this declaration means that the Austrian State had never
ceased to exist, it should logically follow that, being a victim of
s* Gamer, Questions of State Succession raised by the German Annexation of
Austria, 32 A.J.I.L., 1938, p. 421, at p. 422; Wright, The Legality of the
Annexation of Austria by Germany, 38 A.J.I.L., 1944, p. 621, at p. 633.
■"In March, 1938, Germany took over the Austrian Legation i» Washington.
On April 6, the Government of the United States announced the closing of
its legation at Vienna (Hackworth, vol. I, p. 449). Similar steps were taken
by the British Government {Documents on International Affairs, 1938, vol. II,
p. 96; April 5, 1938, Pari. Deb., H.C., 5th ser., vol. 334, col. 194). The
British Foreign Secretary stated on March 16, 1938, that the Government
were ' bound to recognise that the Austrian State has been abolished as a
national entity' (Pari. Deb., H.L., 5th ser., vol. 108, col. 180). The League
of Nations also tacitly admitted Austria's extinction (Langer, op. cit., p. 164).
See generally, Lauterpacht, pp. 397-400; Langer, op. cit., Ch. XXII. The fact
of annexation was admitted in American decisions: Land Oberoesterreich v.
Gude (1940) 109 F. (2d) 635; U.S. ex rel. Zdunic v. Uhl (1941) 46 F. Supp.
688, (1942) 47 F. Supp. 520; see also a decision of the District Court of
Zurich, 1939 (Annual Digest, 1941-1942, Case No. 23). A German anti-
racial decree was, however, refused enforcement in an American court on
the grounds both of non-recognition and of public policy (Johnson v. Briggs,
Inc. (1939), 12 N.Y. Supp. (2d) 60). See also below, p. 69, n. 67.
SB Wright, loc. cit., pp. 621-2; below, pp. 430-1, 437.
■5* United Nations Documents, 1941-1945, 1946, p. 15.
68 Recognition of States
aggression liberated from the domination of Germany, it should
receive the same treatment as other liberated States of Europe.
There could be no ground for imposing on it a military govern-
ment. Its citizens should not be treated as enemies. It should be
permitted to take part in the peace settlement as a victor, rather
than as a vanquished State.60
But that has not been the case. On the contrary, Austria
was reminded that ' she has a responsibility, which she cannot
evade, for participation in the war at the side of Hitlerite
Germany '.61 The Allied Powers have consistently acted upon the
premise that Austria was part of an enemy State 62 and its citizens
alien enemies.63 On its establishment on May 1, 1945, the
Austrian Provisional Government issued a ' Proclamation of the
Independence of Austria '.61 The Allied Governments have on
no occasion alluded to the continued existence of the Austrian
State, although they expressed the desire to see the re-establish-
ment of an independent Austria.65 The League of Nations
apparently also treated the pr&Anschluss Austria as extinct.
When the Assembly of the League was convened in April, 1946,
for liquidation, Austria was asked only to send observers, and
not a regular delegation.66
60 For a full discussion of the treatment of Austria, see Langer, op. cit.,
pp. 155-206.
81 United Nations Documents, 1941-1945, p. 15.
02 See Mr. Eden's statement in the House of Commons, March 1, 1945, that
Austria could not ' be placed on an equal footing with liberated territory
or Allied territory' (Pari. Deb., H.C., 5th ser., vol. 408, col. 1665). The
Supreme Allied Commander, upon the establishment of the Military Govern-
ment in Austria, declared that ' The Allied Forces entered Austria as victors,
inasmuch as Austria has waged war as an integral part of Germany against
the United* Nations' (May 24, 1945, Bulletin of International News, vol.
XXII, p. 521).
63 Austrian prisoners of war were segregated in accordance with the Prisoners,
of War Convention of July 27, 1929, by the British authorities, but not by
the American authorities (Langer, op. cit., pp. 186-7). Some distinctions,
were made in the United States between Austrians and Germans for the
purpose of exempting the former from the restrictions of alien enemies
(ibid., pp. 170-3), but the British Government continued to regard Austrians.
as alien enemies even after the German surrender (ibid., pp. 174-81, 183-6).
See the extreme case of The King v. Home Secretary, ex parte L. [1945],
1 K.B. 7, in which a former Austrian who became a German national in
consequence of the annexation was regarded as an alien enemy despite his
having been denationalised by a subsequent German decree. See comments,
in 23 B.Y.I.L., 1946, p. 378.
"'Langer, op. cit., p. 191.
65 See the directive of the American Government regarding the Military Gov-
ernment in Austria, June 27, 1945 (ibid., p. 194).
" L.o.N. Off. J. (1946), Document A. 22, 1946.
Theory of Recognition of States 69
The above analysis indicates that, although the legal status of
Austria has been, and still is, far from clear," there is however
sufficient evidence to show that she has not been treated as a
liberated country like Czechoslovakia. If the Moscow Declara-
tion is to be interpreted as meaning that Austria had never ceased
to exist, we must come to the absurd conclusion that Austria
had, in her separate existence, joined Germany in a partnership of
aggression. On the other hand, it is also impossible to regard the
revived Austria as an entirely new State. For it would render
unjustifiable the imposition upon her of any responsibility for the
War, in which, as a new State, she had never taken part.
What, then, can be the explanation of this enigma?
Obviously, the theory of the continued existence of Austria
throughout the period of German occupation cannot be main-
tained,68 Austria could not have existed for eight years without
a government. The Moscow Declaration, which declared that
the annexation by Germany was ' null and void ', only annulled
the legal right of Germany over Austria, but did not necessarily
revivify the Austrian State. This interpretation of the Moscow
Declaration was clearly accepted by the American Government,
who, in its directive of June 27, 1945, regarding Military Govern-
ment in Austria, stated:
'The formal abrogation of the Anschluss (Act of March 13,
1938) will not be considered as re-establishing the legal and con-
stitutional system of Austria as it existed prior to that event.' 6°
In view of the foregoing, it seems that the only possible
explanation, though not entirely satisfactory due to the contra-
dictory conduct of the Allied Governments, seems to be that
the old Austria is extinct. The new Austria emerged into life
67 The United States Circuit Court of Appeal in U.S. ex rel. d'Esquiva v. Uhl
(1943), 137 F. (2d) 903, after having reviewed the contradictory acts and
statements of the Executive Department, decided that further clarification
from the State Department was necessary. The case, however, came to an
inconclusive end, owing to the discontinuance of the proceedings by the
District Attorney subsequent to the Moscow Declaration, November 1, 1943.
See Langer, op. cit., p. 171, n. 46.
88 It is suggested by Langer {op. cit., p. 183) that Austria may be regarded as a
neutral State whose territory came under belligerent occupation. But there
was no war between March, 1938, and September, 1939. This theory also
fails to provide legal justification for the imposition of a military government
after the German surrender, and is unable to explain the conduct of the
Allied Powers mentioned above.
"Ibid., p. 195.
70 Recognition of States
as part-successor to the German Reich with a heritage of respon-
sibilities which she had incurred as an integral part of Germany.70
The question of the legal position of Germany since the un-
conditional surrender in 1945 has been one of the most
controversial topics among international lawyers and is likely
to remain a legal mystery for some time, at least under the
accepted concepts of international law. By the Declaration of
Berlin, June 5, 1945, the Four Allied Powers — Great Britain, the
United States, the Soviet Union and France — assumed * supreme
authority with respect to Germany, including all the powers pos-
sessed by the German Government, the High Command and any
State, municipal, or local government or authority; the assump-
tion, for the purposes stated above, of the said authority and
powers does not effect the annexation of Germany '.71 It was
stated in the Declaration that ' there is no central Government or
Authority in Germany ', and that the Allies ' will hereafter
determine the boundaries of Germany . . . and the status of
Germany '.72 A more detailed Proclamation was issued on
September 20, 1945. 73 Germany was divided up into Zones and
a system of military governments was set up.71 Laws and
ordinances which fundamentally reshaped and modified the
political and economic life of Germany were issued by the Zonal
Military Commanders and the Control Council.75 Under these
circumstances, does Germany continue to exist as a State?
In a recent English case, R. v. Bottrill, ex parte Kuechen-
meister (1947) 76 the question of Germany's status was in point.
A certificate of the Foreign Office, dated April 2, 1946, stated
(a) that the assumption of authority in Germany by the Allies did
not effect the annexation of Germany, (b) that Germany exists
as a State and German nationality as a nationality, and (c) that
the war continues to exist, as no treaty of peace or declaration
70 See the British communication to Austria, September 16, 1947, terminating
the state of war between the two countries {London Gazette, September 16
1947, p. 4340).
71Cmd. 6648 (1945).
72 Ibid.
73 Proclamation No. 2, Official Gazette of the Control Council for Germany
1945, pp. 8-19; 40 A.J.I.L., 1946, Supplement, p. 21.
11 For the structure of the Military Government, see Friedmann, Allied Mili-
tary Government of Germany, 1947, Ch. 4; Jennings, Government in Com-
mission, 23 B.Y.I.L., 1946, pp. 112, 118. For a full discussion of the status
of Germany, see Stodter, Deutschlands Rechtslage, 1948.
73 Friedmann, op. cit., Appendices.
74 [1947] 1 K.B. 41.
Theory of Recognition of States 71
by the Allied Powers has been made. In the Court of Appeal,
Scott, L.J., felt obliged to accept the view of the Foreign Office
as conclusive in English law, though he hinted that in inter-
national law the conclusion might have been different.77 Courts
of other countries have also given judgments to the same effect.78
The opinion of the British Government has, no doubt, great
influence in creating and modifying rules of international law,
especially if all great Powers accept the same view. But, in view
of the actual state of affairs in Germany, whether the British pro-
position can be maintained in the light of the established
principles of international law is quite another question. Writers
who support the view that the State of Germany continues to
exist are obliged to admit that the unique situation cannot be
neatly fitted into orthodox legal categories.79 In view of the fact
that the Allied Powers are now exercising an authority far exceed-
ing that permitted by the traditional laws of war,80 these writers
are compelled to maintain either that the war has been termin-
ated,8' or that it is continued under a changed conception of law.82
But to argue that the war has been terminated would be to make
the exercise of such authority by the Allied Powers even more
unjustifiable. The only basis for the exercise of such authority
must be the extinction of the German State.
The arguments in support of the British view seem to stress
two points : that the Allies have expressly disclaimed the intention
of annexation; and that Germany possesses a government in the
form of the Control Council.
As to the first point, it may be said that the disclaimer of
annexation has merely the negative effect of not incorporating
German territory as an integral part of the territory of the
77 In connexion with the Foreign Office certificate, see Lyons, The Conclusive-
ness of the Foreign Office Certificate, 23 B.Y.I.L., 1946, p. 240.
78 E.g., Supreme Finance Court at Munich, Supreme Court of Austria, and
Court of Appeal at Zurich (Mann, The Present Legal Status of Germany,
1 International Law Quarterly, 1947, pp. 314, 332). Cf. also Re Hourigan
[1946], N.Z.L.R. 1.
79 See for this view, Friedmann, op.cit., p. 63; Mann, loc.cit., p. 328; Jennings,
loc. cit., pp. 122, 133; Notes, 23 B.Y.I.L., 1946, p. 382. Professor Lauterpacht
states that ' the international personality of Germany must be deemed to be
suspended ' (Oppenheim, vol. I, p. 520); same, The Nationality of Denational-
ized Persons, 1 Jewish Yearbook of International Law, 1948, p. 164, at p. 171.
80 See Hague Convention IV in Higgins, The Hague Peace Conferences, 1909,.
pp. 245-53.
81 Friedmann, op. cit., p. 67; Mann, loc. cit., p. 334.
82 Jennings, loc. cit., p. 124.
72 Recognition of States
occupying Powers. Even in the absence of annexation German
territory may still come under the sovereignty of the Allied
Powers, albeit temporarily. The Allies had certainly claimed
the right to ' determine ' the ' status ' and boundaries of
Germany. If the status of a State is to be determined by foreign
States it ceases to be a ' State ' in the true sense of the word.
Theories suggesting that Germany is under condominium 6S or
tutelage SI have been put forward. Whatever is to become of
Germany, whether it is to be restored as a unified State or split up
into a number of States, the German State, as such, must, for the
moment, be regarded as eclipsed by debellation [This interpre-
tation is confirmed by the Judgment of the Nuremberg Tribunal,
in which it was pointed out that the source of the Tribunal's
jurisdiction ' was the exercise of the sovereign legislative power
by the countries to which the German Reich unconditionally
surrendered \86]
It may be objected that if the State of Germany has ceased
to exist andjjts sovereignty been transferred to the occupying
Powers, State succession, resulting in the transfer of international
rights and obligations and the change of nationality, should take
place.87 The answer to this objection is that it may be possible
for a territory under condominium or tutelage to have a separate
nationality and a fiscal autonomy, although the ultimate respon-
sibility for these nationals and for the international debts would
have to be borne by the Power exercising sovereign authority in
the territory. This is the inevitable consequence of the assump-
tion of the foreign relations of Germany by the Allies.88 It is
impossible to believe that without a corresponding obligation on
their part the Allies should have a right to demand that their
83 Kelsen. The Legal Status of Germany according to the Declaration of Berlin.
39 A.J.I.L., 1945, p. 518, at pp. 523-4; Schwarzenberger, op. cit., n. 55, p. 22
above, pp. 142, 314-5; same, The Judgment of Nuremberg, 2 Year Book of
World Affairs, 1948, p. 94, at pp. 103-4.
slGros, La Condition Juridique de I'Allemagne, 50 R.G.D.I.P., 1946, p. 67,
at p. 76.
85 Kelsen, loc. cit., p. 578; Schwarzenberger, op. cit., p. 142, loc. cit., p. 98;
Gros, loc. cit., p. 74; Oppenheim, vol. I, pp. 519-20.
so [Judgment of the International Military Tribunal- at Nuremberg, 1946, Cmd.
6964 (1946), p. 38. See also the decision of the United States Military
Tribunal at Nuremberg in the Alstotter Trial (1947), United Nations War
Crimes Commission, Law Reports of Trials of War Criminals, vol. 6, 1948,
p. 1, at pp. 28-34.]
87 Mann, loc. cit., p. 325; Jennings, loc. cit., p. 122.
•88 See Section III of Proclamation of September 20, 1945, loc. cit., n. 73 above'
and see Occupation Statute, 1949, Art. 2 (c), Cmd. 7677 (1949).
Theory of Recognition of States 73
legislation or acts in Germany be given extraterritorial effect in
other States." It has also been suggested that the exercise of
territorial sovereignty is the only justification for the Allies to try
and punish war criminals, especially with regard to atrocities
committed against German nationals.00
As to the second point, the Control Council exercises powers
of internal government," but it receives authority from the
occupying Powers, and not from the German State. As a matter
of fact, the occupation authorities in Germany are at present
operating not as one government, but as two governments
[each of which has established a German administration with
limited powers] .91a Furthermore, the powers for external affairs of
Germany have been reserved for the Allied Powers themselves.92
The Control Council cannot, therefore, be regarded as a State
Government in the full sense.93 It is beyond the scope of reason
to think that the Control Council can conclude a treaty with the
Allies on behalf of Germany. [Nevertheless, the United Kingdom
found it possible to sign a sterling agreement with Western
Germany, which did not yet possess its own government, in
August, 1949. This agreement was entered into by the United
Kingdom and the Military Governments of Western Germany.94]
It has been pointed out that if the view of the continued state of
war is maintained, we shall have to arrive at the impossible con-
clusion that those Allied officials in the Control Council are
technically at war with their own countries.95
" Such as Control Council Law No. 1 on nationality, (Jennings, loc cit.,
p. 125); Para. 7 (c) of Proclamation of September 20, 1945, regarding
German diplomatic and consular property (loc. cit., n. 68, p. 85 above);
Para. 14 (a) regarding German assets abroad (ibid.). Switzerland entered into
an agreement with the Allies for the liquidation of German property in
Switzerland, although this right of the Allies to dispose of German assets was
not accepted in principle by Switzerland (29 J.C.L., 1947, p. 56; also Mann,
German Property in Switzerland, 23 B.Y.I.L., 1946, p. 354; the same, German
External Assets, 24 ibid., 1947, p. 239).
*° Kelsen, loc. cit., p. 525;- Wright, The Law of the Nuremberg Tribunal, 41
A.J.I.L., 1947, p. 38, at p. 50.
" [The certificate issued by the Foreign Office in connexion with R. v. Bottrill,
ex parte Kuechenmeister [1947], 1 K.B. 41, pointed out that 'the Allied
Control Commission are the agency through which the government of Ger-
many is carried on ' (p. 42).]
91a [For an account of the Western administration see Green, The New Regime
in Western Germany, 3 World Affairs (New Series), 1949, p. 368.]
93 Mann, loc. cit., p. 319; Occupation Statute, 1949, Article 2 (c); cf. Green,
loc. cit., pp. 370, 376-7.
93 Jennings, loc. cit., p. 127.
94 [The Times, August 17, 1949.]
95 Mann, loc. cit., p. 334.
74 Recognition of States
To regard Germany as extinct for lack of a sovereign Govern-
ment raises one serious difficulty, namely, the legal position of
the forthcoming peace treaty, if any. It has been suggested by
Professor Kelsen that, owing to the disappearance of Germany
as a State, the formal proclamation of peace must necessarily be
a unilateral declaration of the occupying Powers. The new
German Government, he suggests, might be asked to accept
certain arrangements, not as a recognition of war guilt, but as
confirmation of a situation which has been created by the present
territorial sovereigns.96 ,
It is evident from the above analysis thatg_State, in which one
or more of the essential elements of statehood is wanting, ceases
to be a State in international law. The cases of Austria and
Germany do not constitute exceptions to this rule. While the
British recognition of the continued existence of Germany may
be conclusive from the point of view of municipal law, it does not
possess any creative force in international law. Unless it be
assumed that the fundamental concepts of international law have
been altered, the British view of the continued existence of
Germany would leave unexplained other acts of the Allied
Governments which strongly indicate the contrary conclusion/
^Another objection to the declaratory view, one raised by
Professor Lauterpacht, is that the fact of State existence, upon
which the declaratory writers rely as a key to their theory, may
often turn out to be the very question at issue.97 This fact, he
argues, may often not be as self-evident as it is supposed, and its
existence may frequently depend upon the judgment of foreign
States expressed through recognition/
This objection is a formidable one. fBut^ coming from
Professor Lauterpacht, it is less difficult to answer. [¥p$ accord-
ing to his own theory, recognition is a legal duty to be performed
when conditions of fact so demand; it is declaratory of fact,
though constitutive of rights.98 There would be the same
98 Kelsen, loc. cit., p. 525; similarly, Gros, loc cit., p. 78. [In this connexion
it is interesting to note that the preamble of the Occupation Statute for
Western Germany points out that this Statute has been proclaimed by the
three Military Governors ' in the exercise of the supreme authority which is
retained by the Governments of France, the United States, and the United
Kingdom '.]
97 Lauterpacht, pp. 45-51; similarly, but less clearly, Anzilotti, op. cit., vol. I,
p. 165.
98 Lauterpacht, p. 6.
Theory of Recognition of States 75
necessity of, and, therefore, the same difficulty in, ascertaining
whether the fact of the fulfilment of statehood had taken place.
Unless recognition is considered as an act of unfettered discretion,
we are bound in any case to look to the facts for guidance. It is
hardly necessary to point out that the task of fact-finding
requires a higher standard of accuracy according to Professor
Lauterpacht's theory than according to the declaratory theory.
For the latter view, recognition being a matter of evidence only,
allows considerable lapse of time between the time that the State
actually comes into existence, and the time of its recognition by
others; while, according to the former view, recognition, to be
strictly in accordance with international duty, must synchronise
with the time that the State actually comes into existence. For
this reason, if the difficulty of ascertaining the fact of State exis-
tence constitutes an objection to the declaratory theory, it must
be submitted with great respect that that objection applies with
even greater force to a constitutive theory wedded to the doctrine
of the legal nature of recognition^
This is not to argue that the fact of State existence is invari-
ably self-evident and the task of ascertainment easy. The
complicated conditions of international relations often give rise
to anomalies which defy classification. It is only by strict
adherence to principles that we are able to penetrate through an
outer coat of uncertainties and irregularities into the core of
solid truth. Professor Lauterpacht, in pointing out the impracti-
cability of the automatic test of ' existence ', argues that there are
cases in which ' existence ' alone is not sufficient to bring a new
international person into being. He refers to the cases of
' Manchukuo ', the Vatican City [and, shortly, the constituent
Republics of the Soviet Union].98 These are admittedly difficult
cases, but not cases in which the application of principles is
impossible.
With regard to ' Manchukuo ', it has been pointed out else-
where l that ' the fact that it exists ' is in reality non-existent.
This constitutes a positive proof that a 'State' not in fact
existent does not acquire statehood through mere recognition,
while it does not prove the contrary case that a State in fact
99 Lauterpacht, pp. 45-51.
1 See above, p. 59; below, p. 299, n. 47.
76 Recognition of States
existing cannot acquire statehood for want of recognition. Con-
trarily, the logic of the constitutive theory would compel the
conclusion that the personality of ' Manchukuo ' could be
' created ' by the Japanese recognition alone, regardless of
whether it fulfilled the requirements of statehood. This clearly
illustrates a basic incompatibility between the constitutive theory
and the legal nature of recognition.
The essential elements of statehood of the Vatican City have,
indeed, been reduced to a bare minimum. Yet it is nevertheless
untrue to say that it had been ' created ' by the recognition by
Italy through the conclusion of the Lateran Treaty of 1929. Far
from having ' created * the Vatican City, the Treaty was in reality
a confirmation of the survival of the Papal State in its reduced
form. Apart from the consideration that a recognition by treaty
necessarily implies the prior existence of the parties,2 Article 26s
of the Treaty clearly stipulates that the recognition was mutual.4
If we say that the Treaty had ' created ' the Vatican City, can we
stop short of saying that it had also ' created ' Italy? Professor
Lauterpacht believes that the reciprocal form of recognition was
taken because of the necessity of recognition by the Vatican City
of the annexation by Italy of the territory of the Papal State in
1870.5 This is to admit that the Vatican City, prior to the signing
of the Treaty, had rights to such territory. It could not have rights
unless it had prior existence. In view of its diminutive size, the
Holy See may probably be regarded as a State forming a class by
itself. The Italian Court of Cassation referred to the Holy See
as an international personality which is not necessarily a State,
and declared that ' such personality was never denied to the Holy
See even before the Lateran Treaty of February 11, 1929 '.5
[The constituent Republics of the Soviet Union were granted
a new status by the Constitutional Amendments of February,
1944. By these the Republics acquired ' the right to enter into
direct relations with foreign States, conclude agreements with
them, and exchange diplomatic and consular representatives
2 See above, p. 42 et seq.; Goebel, op. cit., p. 64, n. 1.
3 Documents on International Affairs, 1929, p. 225.
1 See Cumbo, The Holy See and International Law, 2 International Lato
Quarterly, 1948, p. 603.
3 Lauterpacht, p. 57, n. 3.
6 Nanni and Others v. Pace and the Sovereign Order of Malta, Italy, Court
of Cassation (1935), Annual Digest, 1935-1937, Case No. 2, p. 5.
Theory of Recognition of States 11
with them V The question immediately arises whether the effect
of this change of status was to cause the various Republics to
' exist ' as States. In accordance with the traditional constitutive
view this was undoubtedly the case, for there could be nothing
more conclusive of the existence of statehood than recognition
by the parent State. But so far, it seems, no State has been willing
to accept this act of creation and unilateral recognition as con-
clusive. Third States seemed to regard the actual control
exercised by the Union Government as the more conclusive
factor.8 The fact that certain of such Republics were given seats
in the United Nations was only the result of political bargaining."
The very fact that only two, and not all, of the Republics were
admitted reflects the truth that they were not admitted as sovereign
States. It should not be forgotten, however, that the admission
of such Republics to the United Nations and the election of one
of them to the Security Council may constitute recognition.10]
\ If recognition does not create State personality, what, it has
been asked, is its function? " Or, must recognition have a
function?13 It is believed that, by recognition, a State declares,.
admits, and accepts a state of facts13 and outwardly manifests the
mental comprehension of such facts,14 [or, as Dr. Schwarzenberger
puts it, the ' acknowledgment of a situation with the intention of
admitting the legal implications of such a state of affairs '.^To
a similar effect is the Bogota Charter of the Organisation of
American States, 1948 : ' Recognition implies that the State
granting it accepts the personality of the new State, with all the
rights and duties that international law prescribes for the two
States.'16] It is an ' assurance given to a new State that it will be
permitted to hold its place and rank, in the character of an
independent political organism, in the society of nations *." Such
' [Dobrin, Soviet Federalism and the Principle of Double Subordination, 30
Grotius Transactions, 1944, p. 260, at p. 261.]
8 [Ibid., p. 283; Gross, The Charter of the United Nations and the Lodge
Reservations, 41 A.J XL., 1947, p. 531, at p. 533.]
9 [Byrnes, Speaking Frankly, 1947, p. 39; Sherwood, The White House Papers
of Harry L. Hopkins, 1949, vol. 2, pp. 846-8, 865-6.]
10 [See below, pp. 212, n. 9, 215.]
" Oppenheim, vol. I, p. 122
" Jaffe, Judicial Aspects of Foreign Relations, 1933, p. 101. See below, Part 3.
,3Nys, loc. cit., n. 21, p. 15 above, p. 293.
,d Hervey, Legal Effects of Recognition in International Law, 1928, p. 8.
15 [A Manual of International Law, 1950, p. 27.]
™[Loc. cit., n. 6, p. 31 above, Article 10.]
" Hyde, vol. I, p. 148; Moore, Digest, vol. I, p. 72; Rivier, op. cit., vol. 1, p. 57.
V
78 Recognition of States
an assurance dispels uncertainty, and fortifies and stabilises the
new State.18 It is an estoppel against any subsequent denial of
the existence of the State.19 [it is strong evidence of the existence
of the State, and might be conclusive for the internal purposes of
the recognising State.20 Lastly, it forms a starting point for the
recognising and the recognised States to enter into closer political
and commercial relationships than are required for a policy
based on the bare necessities of live and let live.21J In conclusion,
it may be stated that, although recognition does not create the
international personality of the State, it is nevertheless of great
importance from the political, economic and psychological points
of view. This importance should not be overlooked, still less
ignored, but should be appreciated and given its proper weight
in the decisions of States on the question of recognition.
18 Erich, loc. cit., n. 48, p. 66 above, pp. 459-60, 468.
19 Williams, Some Thoughts on the Doctrine of Recognition in International
Law, 47 H.L.R., 1933-1934, p. 776, at pp. 793-794.
20 Baty, op. cit., p. 205; Williams, Recognition, 15 Grotius Transactions, 1929,
p. 53, at p. 71 et seq.; Article 8 of the Resolution of the Institute of Inter-
national Law, 30 A.J.I.L., 1936, Supplement, p. 186; below, p. 250 ff.
2t Williams, loc cit., p. 53.
CHAPTER 3
RECOGNITION OF STATES IN PRACTICE
The present chapter is not intended to include a discussion of the
practice concerning the recognition of States in all its ramifica-
tions * ; it is confined to answering the question : to what extent
States have, in their practice, manifested their adoption of the
declaratory principle. The answer may be sought in the words
and deeds of statesmen and the pronouncements of courts of law.
§1. Official Opinions
(The official attitude of the British and American governments has
been, on the whole, to regard recognition as an acknowledgment
of facts, as a declaration that a foreign community had in fact
acquired the qualifications of statehood, and as an intimation of
willingness to enter into relations with such a community^ This
attitude took concrete shape during the revolution of the Spanish
Colonies in America and has received further confirmation on
subsequent occasions. The revolt of the Spanish Colonies,
although not the first case in which the question of recognition
had occurred,2 was certainly the most important occasion for the
formation of the Anglo-American practice in this matter. Hall
speaks of their conduct on that occasion as a ' typical example of
recognition given upon unimpeachable grounds '."
The spark of the independence movement in Latin America
was first set alight by the French invasion of Spain in 1808. The
loyal ' juntas ' originally formed in the American Colonies in
support of the Spanish Regency against the French invaders were,
however, soon transformed into centres of separatist movements.
The struggle raged indecisively for many years. British com-
1 These are dealt with under appropriate headings in Parts 3, 4, 5.
2 For earlier cases of recognition see Phillimore, op. cit., n. 21, p. 15 above,
vol. II, p. 21.
' Hall, p. 108. For a historical study of the British and American policy
of this period, see Paxson, The Independence of the South American Repub-
lics, 1903, passim; Goebel, op. cit., n. 21, p. 15 above, pp. 116-41.
79
(y
80 Recognition of States
mercial interests, which had already developed a flourishing trade
with the revolting colonies, pressed for the regularisation of this
trade. In June, 1822, an Act was passed in the British Parliament
regulating direct trade between Britain and territories ' in America
or the West Indies, being or having been a Part of the Dominions
of the King of Spain '.* This action was confidentially admitted
by a Foreign Office official to be an acknowledgment of the
existence of these Colonies as States.5 Lord Londonderry-
defended the British action on the ground that, since the Spanish
Government was unable effectively to assert its control, the
necessity of the situation compelled the establishment of relations
in some other form. He conceived of recognition as nothing more
than the forming of some ' recognised and established relations '.*
This idea was reiterated in a Foreign Office memorandum for use
in the Congress of Verona, in which it was stated :
' The Question then resolves itself into one, rather as to the
mode of our Relations, than as to whether they (i.e., the Spanish
Provinces) shall, or shall not subsist to the extent, in the matter of
Right, as regulated by the Law of Nations.' 7
In England there seems to have been an opinion current at
that time which distinguished between recognition by the parent
State and that by third States: the one constitutive, the other
declaratory.8 Indeed, it cannot be denied that recognition by the
parent State is more vital than recognition by foreign States. But
its importance is more political than legal in character. Recogni-
tion by the parent State indicates the surrender of power, if any,
and the relinquishment of any further attempt to reconquer by
force. It contributes to the creation of the political fact of
independence, which forms the basis of the legal personality of
the new State. It does not constitute that personality. Its
recognition no doubt tranquillises and stabilises the new regime;
but its non-recognition need not invalidate it.
The policy of Canning was at first to pursuade Spain to concur
1 3 Geo. IV, C. 43, s. 3.
5 Smith, vol. I, p. 122.
6 Ibid., p. 123.
7 Ibid., p. 125.
8 Speech of Sir James Mackintosh in the House of Commons, June 15, 1824.
Pari. Deb., New Sen, vol. 11 (1824), col. 1347 ff.; speech by Canning on the
same day, ibid., col. 1397; Canning to Ward in Mexico, September 9, 1825,
Smith, vol. I, p. 126.
Recognition in Practice 81
in the recognition, in order to forestall complaints.3 Later, in
despair at Spain's stubbornness, he decided to proceed with
recognition before it was too late.10
In October, 1822, a commission of inquiry was sent out to
Mexico to report on whether Mexico had established a govern-
ment, which was in fact independent.11 Similar information was
sought in other Spanish Colonies.12 It may be seen from these
proceedings that the British Government considered recognition
as the acknowledgment of facts which required impartial
ascertainment.13
In reply to a Spanish protest against British negotiations with
the insurgents, Canning declared that the separation of the
Colonies was a fact. ' But out of that separation ', he argued,
' grew a state of things, to which it was plainly the duty of the
British Government ... to conform it's (sic) measures, as well as
it's (sic) language. . . .' It would be of no service to Spain to
continue to call a possession of Spain that in which all Spanish
occupation and power had actually been extinguished and
effaced.14
The revolt of Brazil under Dom Pedro against his father, King
John of Portugal, broke out in September, 1822. In a dispatch
of February 15, 1823, Canning seemed to have taken for granted
the existence of the new Empire, and thought that the only
obstacle standing in the way of ' the establishment of a cordial
amity and intercourse between Great Britain and Brazil ' was the
question of the slave trade.15 In January, 1825 he wrote: ' With
Brazil, the fact of Independence is practically assured.' 16 Here,
as in the Spanish case, Canning did not seem to think that
recognition had much to add to an independence established
de facto.
A similar development in the practice concerning recognition
took place in the United Sates during this period. The soundness
9 Pari. Deb., New Ser., vol. 12 (1824), col. 1397.
10 Smith, vol. I, p. 132.
11 Ibid., p. 129.
13 Ibid., p. 131.
13 See this view expressed in Canning's instructions to Woodbine Parish, Consul-
General to Buenos Aires, August 23, 1824 (Paxson, op. tit., p. 234).
14 Smith, vol. I, p. 166.
"Ibid., p. 187.
"Ibid., pp. 195-6.
6
82 Recognition of States
•of the Jeffersonian doctrine of recognition, previously applied to
the recognition of governments,17 found further proof in its
application to the recognition of States. In a letter to the
President, Secretary of State Adams maintained that there is a
stage when the granting of recognition becomes both a right and
a duty of third States. ' It is the stage when independence is
.established as a matter of fact so as to leave the chances of the
opposite party to recover their dominion utterly desperate.' Ie
Neutrals are indeed entitled to judge for themselves whether that
fact exists, but they must ' infer the right from the fact, but not
the fact from the right '.19 In another dispatch he said, ' It is the
mere acknowledgment of existing facts with the view to the
regular establishment with the nations newly formed of those
relations, political and commercial, which it is the moral obliga-
tion of civilised and Christian nations to entertain reciprocally
with one another \20
In his message to Congress, March 8, 1822, President Monroe,
referring to the right of Buenos Aires to rank with independent
nations, said, ' Buenos Aires assumed that rank by a formal
declaration in 1816, and has enjoyed it since 1810 . . .'.21
Obviously, in his opinion, that rank could be assumed without
the aid of external recognition.
<^The idea that recognition is a question of fact has been
repeated frequently by American statesmen.^] A typical formu-
lation of that idea is found in President Grant's message of
December 7, 1875. Having laid down the conditions which make
recognition lawful, he declared:
' In such cases other nations simply deal with an actually
existing condition of things, and recognise as one of the powers of
'" Below, p. 120 et seq.
18 Wharton, Digest, vol. I, pp. 521-2; Moore, Digest, vol. I, pp. 78-9. Note
the incongruity of dates as recorded in the two books; Moore, August 24,
1818; Wharton, August 24, 1816.
19 Moore, op. cit., p. 79.
™ Wharton, op. cit., p. 524.
21 Moore, op. cit., p. 85.
22 See, for instance, speech of Henry Clay in Congress, March 24, 1818 (Mal-
lory, Life and Speeches of Henry Clay, 1860, vol. I, p. 391); his report to the
Senate Committee on Foreign Relations, June 18, 1836 (Moore, op. cit.,
p. 96); Secretary Buchanan to Minister Harris in the Argentine, March 30,
1846 (ibid., p. 91); President Jackson's message to Congress, December 21,
1836 (ibid., p. 98); Secretary Forsyth to Mr. Castillo, Mexican Charge'
d'Affaires, March 17, 1837 (ibid., p. 102).
Recognition in Practice 83
the earth that body politic which has, in fact, become a new power.
In a word, the creation of a new State is a fact.' 23
On several occasions official documents which admitted the
existence of States still unrecognised were issued. Thus, in a
letter of July 24, 1922, Secretary Hughes advised the President
that Estonia, Latvia and Lithuania, having been in continuous
existence since 1919, ought to be recognised. The announcement
subsequently made declared that ' In extending them recognition
on its part, the Government of the United States takes cognizance
of the actual existence of these Governments during a consider-
able period of time . . .'.2i
Like the British Government, the United States Government
also resorted on many occasions to commissions of inquiry to
ascertain the fact to be acknowledged."
[Despite consistent and overwhelming proof of the adoption
of the declaratory principle in Anglo-American practice, it would
nevertheless be untrue to say that there have never been any
isolated incidents or stray remarks by responsible statesmen
which might give colour to the opposite contentionTJ The period
of the American Civil War was one of reaction against de
factoism. It is not surprising, therefore, to find Secretary Seward
taking a view contrary to the declaratory theory, when he said :
' To recognise the independence of a new State and so favour,
possibly determine, its admission into the family of nations, is
the highest possible exercise of sovereign power. . . .' 2<s On
April 7, 1908, the State Department instruction to the American
Ambassador in Paris contained the somewhat curious remark
that ' The Czardom of Bulgaria cannot be de facto until made so
by the recognition of the Powers '." The subsequent recognition
of Bulgaria in 1909, however, took the form of a message of con-
gratulation,38 which seemed to indicate the welcoming of
something the existence of which had been presumed, but not
created. [A more recent instance of United States practice is to
23 Moore, Digest, vol. 1, p. 107.
24 Hackworth, vol. I, p. 201. Italics added. See, similarly, the recognition of
the Kingdom of Hejaz and Nejd, May 2, 1931, ibid., p. 219.
25 See Wharton, op. cit., pp. 187, 188, 527; Moore, op. cit., p. 81; Hackworth,
op. cit., pp. 197-8.
26 Moore, op. cit., p. 106.
27 Hackworth, op. cit., p. 202.
"Ibid.
84 Recognition of States
be found in the statement of the American delegate to the United
Nations in connexion with the de facto recognition of Israel in
1948:
' When it (the right to grant de facto recognition to a
Provisional Government) was exercised by my Government, it was
done as a practical step, in recognition of realities : the existence
of things, and the recognition of a change that had actually taken
place.'28"].
The doctrine which guided Anglo-American policy also
prevailed in other countries. Thus, the Belgian Foreign
Minister declared in 1861 :
' . . . reconnoitre un autre gouvernement n'est que reconnoitre
un fait. . . . En reconnaissant le nouveau royaume d'ltalie, nous
reconnaissons, a leur exemple, un etat de possession, sans nous
constituer juges des evenements qui I'ont etabli. . . .' 29
As may be expected, the declaratory theory found easy
acceptance among Latin American statesmen.30 The four
American nations who signed the Convention of Montevideo,
December 26, 1933 — the United States, Chile, the Dominican
Republic, and Guatemala — agreed to the following :
' Article 3. The political existence of the State is independent
of recognition by the other States. . . .
' Article 6. The recognition of a State merely signifies that the
State which recognises it accepts the personality of the other with
all the rights and duties determined by international law. . . .' Sl
V_The adoption of the declaratory view requires that the de
facto existence of the State be taken as the sole consideration in
deciding the question of recognition. Considerations of profit,
political advantages and self-interest should be disregarded.*2}
From the lawyer's point of view, however, a distinction should be
drawn between a motive and its outward manifestation. It is
with the latter that he is chiefly concerned. The conduct of Great
Britain and the United States with regard to the Spanish American
Republics was no less, if no more, motivated by political
a8a [Security Council Official Records, No. 68, 3rd Year, p. 16.]
29 Jessup, The Spanish Rebellion and International Law, 15 Foreign Affairs,
1937, p. 260. at pp. 275-6.
30 Fontes Juris Gentium, Ser. B, Sectio I, Tomus I, Pars I, pp. 144-5.
31 28 A.J.I.L., 1936, Supplement, p. 76.
32 For a criticism of power politics in recognition, see Lauterpacht, pp. 32-7.
Recognition in Practice 85
considerations than any other case of recognition. But it is not for
that reason less impeccable, nor less exemplary. Great Britain
was, in the first place, under treaty obligations to Spain not to
countenance any withdrawal from the allegiance to the Spanish
monarch.33 The European situation, moreover, required that
France be prevented from availing herself of the opportunity
offered by the dissensions in the Spanish Empire to weaken the
Allied cause.31 On the other hand, there was general sympathy
in England with the cause of the insurgents, and powerful
mercantile interests were impatient to establish trade with Latin
America on a more regular basis.35 Moreover, to ignore the
claims of the revolting Provinces altogether would be to throw
them into the embrace of France.30 It was the balance of these
considerations which determined the course actually taken.
In the United States, too, general sentiment would have urged
an earlier recognition.37 But actual recognition was delayed for
three years on account of the negotiations over the purchase of
Florida.38
It is clear that motives, however questionable, do not neces-
sarily give rise to illegitimate actions. fPolitical considerations
become objectionable only when manifested in actual conduct, V
such as in premature recognition, in withholding recognition in
defiance of actual facts, or in offering recognition as a price
for political concessions. Such practices are rightly to be
condemned. /
(Premature recognition should properly be considered as a
species of intervention, rather than of recognition^ The under- -
taking is generally viewed as a political adventure with full
knowledge of its illegality and its consequences. The recognising
State seldom seeks to justify its action upon legal principles of
recognition. Premature recognition is, therefore, not illustrative
of the practice of States in matters of recognition. It is not
strictly germane to the subject under discussion. Thus the
33 Smith, vol. I, p. 1 17. This was later repudiated by Canning in his despatch
to the Spanish Minister in London, March 25, 1825, ibid., pp. 163-4.
31 Ibid., p. 118. British policy in Spanish America was, in fact, merely one
of the ramifications of European politics (Paxson,, op. cit., p. 179).
35 Smith, op. cit., p. 122.
™Ibid., p. 118.
"Moore, Digest, vol. I, p. 83.
38Jaffe, op. cit., p. 104; Paxson, op. cit., pp. 136, 169; Goebel, op. cit., pp.
128-31, 133-4.
86 Recognition of States
recognition of the United States by France in 1778, and the
recognition of Greece and Belgium by the Great Powers in 1827
and 1831 have properly been discussed by Sir Robert Phillimore
under the heading of ' Intervention '.39
The transformation of the British former colonies into
independent States via dominion status is a perplexing, but
instructive, instance of recognition. It illustrates the futility of
the constitutive doctrine in such a circumstance. The participa-
tion of the Dominions in the Peace Treaties and their membership
in the League of Nations no doubt assured for them a species of
international personality. If these facts imply recognition, then,
from the point of view of the constitutive theory, they must be
considered from that moment in possession of full-grown state-
hood. But that simple solution does not correspond with the
views expressed by competent authorities. In 1921, Mr. Lloyd
George was still telling the House of Commons that ' The instru-
ment of the foreign policy of the Empire is the British Foreign
Office. That had been accepted by all the Dominions as inevit-
able '." The executive, legislative and judicial sovereignty over
the whole Empire was then still considered as vested in the British
organs of Government at Westminster. It was not until 1924 that
the Irish Free State had its separate diplomatic representative in
the United States, Canada and the Union of South Africa came
later in 1926 and 1929."
Did the Statute of Westminster, 1931,42 constitute recogni-
tion of independence? There is no direct answer. By Section I
of the Statute, the title of ' Dominion ' was conferred upon
Canada, Australia, South Africa, the Irish Free State,43 New
Zealand and Newfoundland "4 ; yet the remainder of the Statute
did not apply immediately to Australia, New Zealand and
Newfoundland until adopted by the Parliaments of these
39 Phillimore, Commentaries upon International Law, vol. I (1879), p. 553 et seq.i
also see Harcourt, Letters by Historicus on Some Questions of International
Law, 1863, pp. 5-6; Keith's Wheaton, vol. I, p. 55; above, p. 54, n. 97.
40 Quoted in Scott, The End of Dominion Status, 38 A.J.I.L., 1944, p. 34, at
p. 36.
41 Hackworth, vol. I, pp. 64-6.
12 22 Geo. 5, c. 4.
43 Eire became an independent Republic on April 18, 1949, see Irish Republic
Act (No. 22 of 1948) and Ireland Act, 1949 (12 & 13 Geo. 6, Ch. 41).
11 India and Pakistan became Dominions on August 15, 1947, Indian Indepen-
dence Act, 1947 (10 & 11 Geo. 6, Ch. 30; s. 1), and Ceylon on February 10,
1948, Ceylon Independence Act, 1947 (11 Geo. 6, Ch. 7, s. 2).
Recognition in Practice 87
Dominions (s.10). Thus, New Zealand and Newfoundland never
came under the provisions of the Statute, and Australia not until
1943.45 To them, at least, the ' recognition ' given by the Statute
did not produce constitutive effect.
In Murray v. Parkes, 1942,46 the question to be decided was
whether a person claiming to be a citizen of Eire could be
exempted from military service on the ground of alienage. The
issue turned upon the status of Eire. It was held that the Statute
of Westminster did not grant the right of secession to Eire, and
that the Eire (Confirmation of Agreement) Act, 1938, did not
recognise secession to have taken place. Singleton J. said : ' I
fail to find anything to show me that the Government which was
set up in that part of Ireland which was formerly the Irish Free
State has been recognised by His Majesty's Government as a
sovereign, independent, democratic State.' "
This statement seems to be contradicted by the fact that Eire
remained neutral throughout the war against Germany. While
Australia and New Zealand issued declarations to the effect that
they considered themselves at war as the result of the British
declaration of war on September 3, 1939, the Union of South
Africa issued a separate declaration of war on September 6 and
Canada on September 10. As regards the declaration of war
against Japan, each Dominion acted separately. Through
gradual transformation, the Dominions, excepting Newfound-
land,48 are now in possession of the normal status of independent
States.49 It does not seem, however, that this state of indepen-
dence is attributable to any particular act of a special creative
force emanating from Great Britain or any other State. [This is
not so with the new Dominions of Pakistan and Ceylon, which
"Scott, loc cit., p. 39.
"[1942] 2 K.B. 123.
47 Ibid., p. 136.
48 Its dominion status had been suspended by the Newfoundland Act, 1933
(24 Geo. 5, c. 2). It has now become a province of Canada, British North
America Act, 1949 (12 & 13 Geo. 6, Ch. 22).
49 See Oppenheim, vol. I., pp. 185-90; Cobbett, vol. I, pp. 38-9; Scott, loc. cit.,
p. 34 et seq.; [Schwarzenberger, A Manual of International Law, 1950, p. 32.
See also the Declaration of Dominion Prime Ministers which recognises that
India will remain within the Commonwealth even after becoming ' an inde-
pendent sovereign republic ', The Times, April 28, 1949; Jennings, The
Commonwealth Conference, 1949, 25 B.Y.I.L., 1948, p. 414; FitzGerald,
Further Developments in the British Commonwealth of Nations, 3 World
Affairs (New Series), 1949, p. 269.]
L
88 Recognition of States
owe their existence as independent Dominions to Acts of the
English Parliament. In the case of Pakistan, the State Depart-
ment, on August 14, 1947, pointed out that ' the Dominion of
Pakistan becomes a new member of the family of nations on
August 15 ', the date stipulated in the India Independence Act.50
No such statement was necessary in connexion with the Dominion
of India, for she succeeded to the international personality of the
former Empire of India. In her case the Government of the
United States agreed to appoint an Ambassador as early as
October, 1946, and the Indian Ambassador in Washington
presented his letters of credence six months before the establish-
ment of the Dominion.51] Such independence, whether recognised
or not, exists of its own strength.
§ 2. Judicial Opinions
Owing to the acceptance of the doctrine of judicial self-
imitation,52 English and American courts have seldom had
occasion to give a clear-cut judicial pronouncement on the nature
of recognition. Courts generally refuse to take account of the
existence of a State not recognised by the political department
This, however, is far from saying, as some people would assume,
that the courts are in favour of the constitutive view, for to prove
the acceptance of the constitutive view it is necessary to show that,
in spite of admitting the fact of the existence of the new State, the
court nevertheless refuses to attribute legal personality to it so
long as it has not been recognised by the Government. ("Under
the doctrine of judicial self-limitation, the courts refuse to enter-
tain even the fact that a body of men had been politically
organised, unless the vital evidence is provided by the Govern-
ment. Recognition by the Government, or a certificate to the
court from the relevant executive department, is regarded as
' conclusive evidence ' binding upon the Couft°j For this reason,
although the refusal of the courts to give effect to the rights under
international law of unrecognised States does seem to give colour
to the constitutive argument, yet, as long as the doctrine of
judicial self-limitation prevails, courts do not really have the
50 Dept. of State Press Release No. 656, August 14, 1947.
51 [Ibid., No. 753, October 23, 1946; No. 785, February 28, 1947.]
62 See below, p. 240 et seq.
"Below, pp. 250-1.
Recognition in Practice 89
opportunity to address themselves to the question of the effect of
recognition on its own merits.
J On the other hand, where there is a departure from the
doctrine of judicial self-limitation or where the doctrine is not-
involved, there is definite evidence that the courts are in favour
of the declaratory viejvy' Thus, in the two cases of well-known
departures from the doctrine (Consul of Spain v. La Conception
<1819) and Yrisarri v. Clement (1826)),5d it was held that, the
factual existence of the new States in question having been proved,
their rights under international law must be allowed. It seems
that a court which breaks away from the doctrine of judicial self-
limitation would almost certainly find itself in alliance with the
declaratory theory, because in asserting the existence of a state of
facts independently of the views of the political department the
court cannot stop short of attributing to such state of facts the
consequences of law. In the case of Consul of Spain v. La
Conception, the declaratory view of Justice Johnson is
pronounced. He said :
' The actual possession and long exercise of all the attributes
of a state of independence may be legally resorted to without
giving just cause of umbrage to a nation that does not possess the
power to subjugate a revolted colony. There exist many nations
at this day which may claim of courts of international law all the
rights of independent nations and may be judicially recognised
as such, notwithstanding no act of government has acknowledged
them in that capacity.' "
In a more recent case, Wulfsohn v. R.S.F.S.R. (1922), the New
York Court of Appeals held that :
' Whether or not a government exists, clothed with the power
to enforce its authority within its own territory, obeyed by the
people over whom it rules, capable of performing the duties and
fulfilling the obligations of an independent power, able to enforce
its claims by military force, is a fact, not a theory. For its recogni-
tion does not create the State, although it may be desirable.' 56
34 1819, 2 Wheel. Cr. Cas. 597; 1826, 3 Bing. 432 (see below, p. 244).
55 2 Wheel Cr. Cas. 597, Fed. Cases No. 3137 (D.C.S.C. 1819). Reversed on
additional findings of facts (1821), 6 Wheat. 235. Quoted in Jaffe, op. cit.,
pp. 133-4.
68 (1922) 192 N.Y. Supp. 282, (1922) 195 N.Y. Supp. 472, (1923) 234 N.Y.
372, 375; Green, International Law Through the Cases, 1951, No. 35.
Although this case was concerned with unrecognised governments, the argu-
ment quoted has direct reference to the recognition of States.
90 Recognition of States
In cases in which the courts are unhampered by considera-
tions of judicial self-limitation, the declaratory view seems to have
found wide acceptance. First among these, we must mention the
dictum of Abbott C.J. in Doe d. Thomas v. Acklam (1824). In
that case the Chief Justice, in answer to the question whether the
Definitive Treaty of 1783 between Great Britain and the United
States had constituted the independence of the latter, said :
' This recognition of independence was made, or rather
confirmed, on the 3rd of September, 1783, by a treaty between his
late Majesty and the United States of America. . . . Between the
signing of the articles (i.e., Preliminary Articles, November 30,
1782) and of the definitive treaty, several Acts were passed, men-
tioning the United States of America, and the subjects and citizens
of those States: and the name of colonies or plantations is no
longer used (See 23 G.3, C.26; C.39 and 80). Many Acts of
Parliament, wherein the United States of America are mentioned
and treated as a distinct and independent nation, have been since
passed; . . .' 57
This opinion is the more remarkable since it was pronounced
by a court of the country against which the revolution had
taken place.
It is almost natural for courts of States whose legal existence
are in issue to rely heavily upon the declaratory theory. The
United States Supreme Court held on several occasions that the
independence of the United States commenced de facto and de
jure as from July 4, 1776.58
The courts of States coming into existence after the First
World War have been at one in holding that the existence of their
States antedated their recognition in the Peace Treaties. Thus
it was forcefully maintained by the Czechoslovak Supreme
Administrative Court that
"2B&C, 779, 795 (italics added).
58 Ware v. Hylton (1796), 3 Dall. 199, 224; Mcllvaine v. Coxe's Lessee (1808),
4 Cranch 208, 212; Harcourt v. Gaillard (1827), 12 Wheat. 523, 527. Contra,
United States v. Hutchings (1817), Fed. Cases No. 15, 429, 2 Wheel. Cr. Cas.
543, cited in Hervey, op. cit., pp. 10-11. In the case of Andrew Allen, 1799,
the former view was insisted upon by the American members of the British-
American Mixed Commission established under Article 6 of the Jay Treaty
(Moore, International Adjudications, vol. Ill, p. 244). But the majority of
the Commissioners maintained that until the Treaty of 1783, the American
Colonies were in a state of rebellion against Great Britain (ibid., pp. 175,
303). See also Barclay v. Russell (1797), 3 Ves. Jun. 423, below, p. 173.
Recognition in Practice 91
' The contention is erroneous that a State comes or could come
into existence by international recognition. On the contrary, the
international recognition . . . necessarily takes the existence of an
independent State for granted. For the existence of a State such
recognition is not necessary in the same way as such recognition
itself would not be sufficient for this purpose.' 5"
If national courts of nascent States may be accused of being
carried away by nationalistic sentiments in disregard of legal
principles,60 such a charge can certainly not be levelled against
international tribunals and courts of third States, which arrive at
the same conclusion. Thus, the German Reichsgericht in
Criminal Matters, emphatically held ' that in May, 1919, the
Czechoslovak Republic was in fact established and that its
Government was effectively in power since January, 1919. The
question of recognition was irrelevant '.61
In Bohemian Union Bank v. Administrator of Austrian
Property (1927) 6Z an English Court upheld the view that Czecho-
slovak citizenship became effective as from October 28, 1918, the
date on which the National Committee assumed actual power,
and not from the date of the coming into force of the Treaty of
St. Germain, July, 1920.
The Swiss Court of Appeal of Zurich, in In re M. and O.
(1921),63 while rejecting the Polish theory of national continuity
since the Third Partition, was, nevertheless, content with saying
that Poland did not exist before gaining its actual independence.
5* Decision of the Czechoslovak Supreme Administrative Court (1919), Annual
Digest, 1919-1922, p. 17, n. c. See similar Czechoslovak decisions: Rights
of Citizenship (Establishment of Czechoslovak State) Case (1921), ibid..
Case No. 5; Rights of Citizenship (Establishment of Czechoslovak Nation-
ality) Case (1921), ibid., Case No. 6; In Re X (Establishment of Czechoslovak
Nationality) Case (1923), ibid., 1923-1924, Case No. 2; Establishment of
Czechoslovak State Case (1925), ibid., 1925-1926, Case No. 8. Similar
Austrian cases: A.L.B. v. (Austrian) Federal Ministry for the Interior, Aus-
trian Administrative Court, Vienna (1922), ibid., 1919-1922, Case No. 7;
H.E. v. Federal Ministry of the Interior (1925), ibid., 1927-1928, Case No. 11.
Polish Courts, however, made more extravagant claims. They held that
Poland had continued to exist ever since the Third Partition. See Polish
Supreme Court decisions: Republic (Poland) v. Weishole (1919), ibid., 1919-
1922, Case No. 17; Republic (Poland) v. Felsenstadt (1922), ibid., Case
No. 16; Republic (Poland) v. Pantol (1922), ibid., Case No. 18; Poland v.
Harajewica (1923), ibid., 1923-1924, Case No. 1.
60 Lauterpacht, pp. 43-4.
61 Counterfeiting of Stamps (Czechoslovakia) Case (1920), Annual Digest,
1919-1922, Case No. 24.
62 [1927] 2 Ch. 175.
" (1921), Annual Digest, 1919-1922, Case No. 42.
92 Recognition of States
The German-Polish Mixed Arbitral Tribunal was more
precise. It decided in Poznanski v. Lentz and Hirschfeld " that
Poland existed as an independent State before the Treaty of
Versailles. The same tribunal in Deutsche Continental
Gasgesellschajt v. Polish State (1929) expressly embraced the
declaratory doctrine. Thus, it said :
'According to the opinion rightly admitted by the great
majority of writers on international law, the recognition of a State
is not constitutive but merely declaratory. The State exists by
itself and recognition is nothing else than a declaration of this
existence, recognised by the States from which it emanates.' "
[Despite this express statement it must be borne in mind that
the Tribunal mainly relied on the assertion of a German act of
de jure recognition of Poland in November,, 19 18.66]
The examination of the practice of States has shown that de
factoism has undoubtedly been the backbone of the Anglo-
American policy of recognition. Such a policy is based upon the
view that recognition registers, but does not create, a situation
of fact. British and American courts, owing to their adherence
to the doctrine of judicial self-limitation, refuse generally to pro-
nounce upon a situation in a foreign country on which the
executive department chooses to be silent. In those exceptional
cases, where the doctrine of judicial self-limitation is disregarded
or not involved, their view has been undoubtedly in favour of the
declaratory theory. The same is true of numerous cases decided
by international tribunals and courts of other States, [although
the practice of the Permanent Court of International Justice
appears to favour the constitutive view." The International Court
of Justice, however, when discussing the international personality
of the United Nations in the course of the Advisory Opinion on
Reparation for Injuries Suffered in the Service of the United
Nations (1949), veered towards a rather authoritarian interpreta-
tion of the declaratory doctrine of recognition. Apparently, even
64 (1924). 4 M.A.T., 1925, p. 353.
85 9 M.A.T. (1929-1930), 336, at pp. 343-346. See, for a review of cases in
support of this view, Rankin, Legal Problems of Poland after 1918, 26 Grotius
Transactions, 1940, p. 1, at pp. 5-9.
86 [Schwarzenberger, op. cit., n. 55, p. 22 above, p. 64.]
67 [See; for example, Certain German Interests in Polish Upper Silesia, 1926
(Series A, No. 7), and Schwarzenberger, op. cit., pp. 62-64.]
Recognition in Practice 93
non-members are held to be bound to accept the international
personality of the United Nations: 'The Court's opinion
is that fifty States, representing the vast majority of the
members of the international community, had the power, in con-
formity with international law, to bring into being an entity
possessing objective international personality, and not merely
personality recognised by them alone \6S]
' [l.CJ. Reports, 1949, p. 174, at p. 185.]
PART TWO
RECOGNITION OF GOVERNMENTS1
'The term ' Government 'when used unqualifiedly in this work means ' the
government of the State '. It includes recognised governments and unrecog-
nised general de facto governments, but not local de facto governments, or
local divisions of the government. The term ' local de facto governments '
includes the authorities of belligerent communities and the authorities of
hostile military occupants.
CHAPTER 4
RECOGNITION OF GOVERNMENTS AND
OF STATES
T NTERNATIONAL lawyers are almost unanimously of
J- opinion that, in principle, the personality of a State is not
affected by a change in the form of its government or of the
persons composing its government.2 AThus France remained the
same international person despite revolutionary changes in
government in 1815, 1830, 1848, 1852, 1870, 1940 and 1946. Like-
wise, the personality of Great Britain was unaffected by the
revolutions and restorations of 1649, 1660 and 1688,3 [while in
1949 the transition of Eire from a Dominion to an independent
Republic and of India from an Empire to a Dominion took place
without any change in the international personality of the two
States]. The view is also to be seen in State practice. In a
communication to the Attorney-General of the United States, the
State Department defined its position with respect to Mexico, at
that time — 1922 — under a government not recognised by the
United States, as follows:
' The Government of the United States has not accorded
recognition to the administration now functioning in Mexico,
and therefore has at present no official relations with that
administration. This fact, however, does not affect the recogni-
tion of the Mexican State itself, which for years has been
recognised by the United States as an " international person ", as;
aHalI, p. 21; Oppenheim, vol. I, p. 148; Grotius, De Jure Belli ac Pacisr
Libri Tres, Bk. II, Ch. IX, s. 8; Dana's Wheaton, s. 22; Westlake, op. ci7.„
n. 15, p. 15 above, vol. I, p. 58; Rivier, op. cit., n. 23, p. 15 above, vol. I,
p. 62; Bluntschli, op. cit., n. 10, p. 14 above, s. 40; Hyde, vol. I,,
pp. 158-9; Fauchille, op. cit., n. 24, p. 15 above, t. I, Pt. I, pp. 319, 338-43-
Fiore, op. cit., n. 25, p. 15 above, Article 58; Moore, Digest, vol. I, p. 249p
Rougier, Les Guerres Civiles et le Droit des Gens, 1903, p. 483.
3 It has been suggested that in absolute monarchies the personality of the;
State is identified with the person of the monarch (Wright, Suits brought by
Foreign States with Unrecognised Governments, 17 A.J.I.L., 1923, p. 742,.
at p. 743). Whether this is true or not does not seem to affect the correctness
of the proposition that personal compacts with defunct sovereigns do not
survive the change of government (Grotius, op. cit., Bk. II, Ch. XVI,.
s. 16; Keith's Wheaton, vol. I, p. 57).
97
1/
98 Recognition of Governments
that term is understood in international practice. The existing
situation simply is that there is no official intercourse between the
two States.' 4
In an earlier case, The Sapphire (1870),5 the Supreme Court of
the United States declared that the deposition of Napoleon had no
effect upon the sovereignty of France, which was the owner of
the vessel in question. The successor government was competent
to carry on a suit already commenced, and to receive the fruits of
the litigation. _
In th^Lehigh Valley Railroad Co. Case (1919-1927)A the
suit commenced by the Ambassador of the provisional Russian
Government was allowed to be carried on in the name of the
' State of Russia ', after the extinction of the provisional
Government. Mr. Justice Manton said :
' The granting or refusal of recognition (of governments) has
nothing to do with the recognition of the State itself. If a foreign
State refuses the recognition of a change in the form of govern-
ment of an old State, this latter does not thereby lose its recogni-
tion as an international person. . . . The suit did not abate by
the change in the form of government in Russia; the State is per-
petual and survives the form of its Government.' 7
In the English case, The Government of Spain v. The
Chancery Lane Safe Deposit Ltd., De Reding and the Attorney-
General and the State of Spain v. the same (1939),8 the litigation
* Government of Mexico (later changed into ' the United States of Mexico ')
v. Fernandez, Superior Court of Essex County, Mass., U.S.A., May, 1923,
cited in Wright, loc. cit., pp. 743-4; see also Hackworth, vol. I, p. 127.
Ml Wall, 164, 168.
'Russian Government v. Lehigh Valley R.R. (1919), 293 Fed. 133; (1923) 293
Fed. 135; Ex parte Lehigh Valley R.R. (1924) 265 U.S. 573; Lehigh Valley
R.R. Co. v. State of Russia (1927), 21 F (2d) 396; Hudson, pp. 89, 118.
'Circuit Court of Appeals, 21 F. (2d) 396, Hudson, p. 120. For similar
decisions maintaining the identity of the State person despite change of
government: Agency of Canadian Car and Foundry Co. Ltd. v. American
Can Co. (1918), 253 Fed. 152, (1919) 258 Fed. 363; Guaranty Trust Co. v.
U.S. (1938) 304 U.S. 126, 141; Lepeschkin v. Gosweiler & Co., Federal
Tribunal of Switzerland (1923), Hudson, p. 122, at pp. 123-4, Annual Digest,
1923-1924, Case No. 189; Roselius & Co. v. Karsten, District Court of
Amsterdam (1926), ibid., 1925-1926, Case No. 26; Lowinsky v. Receiver in
Bankruptcy of the Egyptisch-Turksche Handwerksigarettenfabriek 'Jaka',
Ltd., District Court of Amsterdam (1932), ibid., 1931-1932, Case No. 16;
N. and M. Shipoff v. Elte, Cantonal Court of the Hague (1931), ibid.. Case
No. 17; U.S.S.R. v. Onou, K.B.D. (1925), 69 Solicitors' Journal, 1924-1925,
p. 676; U.S.S.R. v. Belaiew (1925), 42 T.L.R. 21; Claim of the Russian
Volunteer Fleet, Br. Admiralty Transport Arb. Bd. (1925), Annual Digest,
1925-1926, Case No. 152.
• Annual Digest, 1941-1942, Case No. 7; The Times, May 26, 1939.
Recognition of Governments and States 99
was inconclusive, but the point was raised in an interesting
fashion. The principle which prevailed was that the Republican
Government prior to February, 1939, and the Nationalist Govern-
ment subsequent to that date were agents of the same entity,
Spain, and that the act of the government, an organ of the State
and distinct from it, could be ultra vires and illegal.
The Supreme Court of Japan, in a case concerning the
counterfeiting of Kerensky currency notes, decided that, although
without a recognised Government, Russia did not cease to be a
State. The counterfeiting was therefore illegal.9
[Since the continuity of States is not interrupted by a change
of government, the recognition of governments must be considered
as an entirely different matter from the recognition of States.
Cases often arise, however, in which the distinction is not
altogether self-evident. It is sometimes difficult to say whether a
given case belongs to the category of a change in the personality
of the State or a change of Government. The difficulty may arise
in such cases as civil war, temporary anarchy, or some other
drastic change in the body politicj The existence of a civil war
invests the revolting community with a certain amount of
authority, not dissimilar to State sovereignty. Writers on inter-
national law are not agreed whether two separate international
personalities have thereby been created.10 If the struggle is one
aiming at secession, then it might turn out that the change is one
of statehood, as well as of government.
un case none of the rival parties is the established government,
a state of temporary anarchy would prevail. Does this dissolve
the personality of the State?) Hall thinks that the personality of
the State survives temporary disruptions provided that they are
not unreasonably prolonged.11 Calvo thinks that the faction
Which commands the greatest following and comprises the most
stable legal elements must be deemed to represent the State.13
Baty, on the other hand, argues, on the ground of ' no control, no
responsibility ', that each part of the disrupted State constitutes
a separate State. If the lingering hope of one of the parts to
9 The Russian Roubles (attempted Counterfeiting) Case, 1919, Annual Digest,
1919-1922, Case No. 15.
10 See below, p. 303 et seq.
11 Hall, p. 21. Also Borchard, Unrecognised Governments in American Courts,
26 A.J.I.L., 1932, p. 261, at p. 267. See above, p. 66.
"Calvo, Droit International, 1896, vol. I, s. 501.
100 Recognition of Governments
reunite the whole should be allowed to prevent the break-up of
the ancient State, then, he argues with considerable persuasive-
ness, it would never be possible for any one portion to form itself
into a separate State.13 American courts have held that Santo
Domingo in 1818 and Haiti in 1889 were not States because of
the existence of civil strife and the disappearance of an orderly
government.11 A foreign State faced with the question of recogni-
tion under such circumstances would be at a loss to know whether
it is recognising a new Government of the old State or an entirely
new State.15
\lhe third situation is one in which the territorial domain, or
the social and political make-up of a State, has undergone such
a fundamental change that it is difficult to discern the former
State personality without considerable imaginationTl Such was
the case of Sardinia after having acquired territory several times
its own size and having changed its title to the ' Kingdom of
Italy '.16 The Serbian Kingdom became the Kingdom of Yugo-
slavia after union with the Croatian and Slovene provinces.1'
Examples of the diminution of State territory may be found in
the cases of Austria, Hungary and Russia after the War of
1914-1918, [and of India in 1947]. While maintaining that the
Italian Kingdom was the continuation of Sardinia, Hall admits
that a State ceases to exist by being split into parts ' in such a
manner that no part can be looked upon as perpetuating the
national being '. The editor of the 8th (1924) edition of his
treatise points out that such was the case with Austria after the
dismemberment of the Empire.18
\_z I It has been contended on behalf of the Soviet Union that a
lsBaty, Can an Anarchy be a State? 28 A.J.I.L., 1934, p. 444. Also Jaffe,
op. cit., n. 21, p. 15 above, p. 103.
14 Gelston v. Hoyt (1818), 3 Wheat. 246, 324; The Conserva (1889), 38 Fed.
431; Moore, Digest, vol. I, p. 201.
"Jaffe, op cit., p. 140.
"Hall, p. 21, n. 1.
17 Serbian official opinion was in favour of the theory of continuity (Erich,
loc. cit., n. 21, p. 15 above, p. 445). But American official opinion seemed
to consider the recognition of Yugoslavia as recognition of a new State
(Hackworth, vol. I, pp. 219-21). The German- Yugoslav Mixed Arbitral
Tribunal held that the Kingdom of Serbs, Croats and Slovenes was not a
' new State ' within the meaning of Article 207 (h) of the Versailles Treaty
(Katz and Klump v. Yugoslavia, 1925, Annual Digest, 1925-1926, Case
No. 24; also ibid., p. 34, n.
18 Hall, p. 22, n. 2. Accord., decision of Austrian Supreme Court in Civil
and Administrative Matters, 1925, in Austrian Pensions (State Succession)
Case, Annual Digest, 1925-1926, Case No. 25. See also above, pp. 56-7.
Recognition of Governments and States
revolution involving a change of the ruling class disrupts t
continuity of the State. "7lt is doubtful whether other States have
been successfully persuaded to accept this view, or whether even
the Soviet Union herself has acted consistently in accordance with
this doctrine.20
In exceptional cases, despite fundamental changes in the per-
sonality of a State, it sometimes happens that no new recognition
is regarded as necessary. Thus, the transformation of the United
States from a Confederation of States into a Federal State involved
a merger of multiple international persons into one, yet the new
person was accepted without renewed recognition, and, indeed, it
was not even considered necessary to recognise the new govern-
ment. [Similarly, no new act of recognition was accorded by,
for example, the United States, when Eire became the Republic
of Ireland in 1949.]
[The practice of States in the matter of recognition often
contributes to the confusion created by the obscure nature of the
change. Evidently they make little effort to keep the recognition
of States and the recognition of governments in watertight com-
partments. The recognition of a new_State is often accomplished
by the recognition of its governmentj By recognising ' the de
facto government of the Armenian Republic ', the United States
had in fact recognised, not only the government, but also the
State of Armenia as well.21 [Similarly£both the United States
and Great Britain recognised the State of Israel by affording de
facto recognition to its GovernmemT) The American declaration
was as follows : ' This Government has been informed that a
19 Dickinson, after examining the Constitution of 1923, expresses doubts whether
the Soviet Union is the same entity as the former Russia (Recent Recognition
Cases, 19 A.J.I.L., 1925, p. 263, at pp. 264-5). Contra, Freund, La Revolution
Bolchevique et le Statin Juridique des Russes, la Point de Vue de la Juris-
prudence Allemande, 51 J.D.I., 1924, pp. 51-2.
20 The Soviet Union did not hesitate to lay claims to any advantages formerly
possessed by Czarist Russia. Its doctrine of discontinuity seemed to be
confined to matters of national debts (Schlesinger, Soviet Legal Theory,
1945, pp. 276-8; Korovin, La Republique des Soviets et le Droit International,
32 R.G.D.I.P., 1925, p. 292; same, Soviet Treaties and International Law,
22 A.J.I.L., 1928, p. 753). In a memorial presented to the Genoa Conference,
1922 (ibid., p. 763), the Soviet Delegate's argument for the dissolution of pre-
vious obligations seemed to rely upon the doctrine of rebus sic stantibus,
rather than the discontinuity of the Russian State. [See also Schapiro (The
Soviet Concept of International Law, 2 Year Book of World Affairs, 1948,
p. 272), who states : ' The Soviet Government had never denied its succession
to the legal personality of the Empire which it overthrew' (pp. 276-9).]
21 Hackworth, vol. I, p. 222. The Baltic States and the Kingdom of Hejaz
and Nejd were also recognised by the United States by the recognition of
their governments (ibid., pp. 201, 219).
102 Recognition of Governments
Jewish state has been proclaimed in Palestine and recognition has
been requested by the provisional government thereof. The
United States recognises the provisional government as the de
facto authority of the new State of Israel.' 22 The British state-
ment said simply: 'His Majesty's Government in the United
Kingdom have decided to accord de facto recognition to the
Government of Israel.' 23 In the same way, following a resolution
adopted by the General Assembly of the United Nations in
December, 1948, both Governments granted recognition ' to the
Government of the Republic of Korea'.24] In 1919 both the Polish
State and its government were recognised by the United States by
means of a message to the Polish Prime Minister congratulating
him on his assumption of office.25 In October, 1918, France with-
drew her recognition of Finland, but it is not clear whether the
withdrawal referred to the State or to the government.26 In Neely v.
Henkel (1901), the United States Supreme Court spoke of the
recognition of a ' government ' as ' the Republic of Cuba \27 In
The Penza and The Tobolsk (1921), the court said that 'the
Soviet Republic ' was never recognised by the United States as
' a sovereign State \2S The Preamble of the Treaty of St. Germain
declared that the ' Austro-Hungarian Monarchy ' had ceased to
exist, and had been replaced in Austria by a ' republican govern-
ment \29 According to the Treaty of Trianon, it had been
replaced in Hungary by a ' national Hungarian Government '."
It is not quite clear from these phrases whether the replacements
of governments resulted in the creation of new States.31
\ The explanation of this confusion may be found in the fact
\y that, so far as existence is concerned, government and State are
inseparable one from the other. This is more obvious in the
case of new States. To recognise the one must necessarily involve
22[Dept. of State Bulletin, vol. 18, No. 464, May 23, 1948, p. 673; see also
Brown, The Recognition of Israel, 42 A.J.I.L., 1948, p. 620.]
23 [Foreign Office, Press Release, January 29, 1949.]
24 [Ibid., January 19, 1949, and Bulletin, vol. 20, No. 497, January 9, 1949, p. 60.]
"Hackworth, vol. I, p. 217.
26 Lauterpacht, p. 350, n. 2.
27 (1901) 180 U.S. 109, 125.
28 (1921) 277 Fed. 91, 94 (E.D.N.Y.), Hackworth, vol. I, p. 373.
2»B.F.S.P. 112 (1919), p, 322.
"Ibid., 113 (1920), p. 489.
31 Sir Arnold McNair has adduced, in addition, other proofs from the Peace
Treaties to show that Austria and Hungary were new States (Law of Treaties,
1938, p. 427). But see above, p. 57, n. 12.
Recognition of Governments and States 103
the recognition of the otherjv The curious case of the recogni-
tion by the Allies in 1919 of Albania without recognising its
government led to considerable confusion in the First Assembly
of the League of Nations.38 [Similar complexities arose in
connexion with the problem of Polish participation in the San
Francisco Conference, 1945.34] When a new State is recognised,
it may generally be presumed that the recognition also applies to
the Government.35
\jrhe distinction between a change of State and a change of
government is important for the clear understanding of the u
juridical nature of the recognition of governments. First, in the
recognition of governments, there is no question of the creation
of personality. For the personality belongs to the State and
survives the change of government. The constitutive theory has,
therefore, no application here.36 On the other hand, the declara-
tory theory, which regards recognition as the acceptance of what
is in fact existent and treats it as such, is equally applicable to
the recognition of both States and governments?} In fact, the
traditional recognition policy of the United States, as laid down
by Jefferson, has always been applied to both cases.
\J5econdly, the distinction makes it possible to define the
relations of a State with another whose government it has not
recognised. Certain legal relations would be kept alive, while
active diplomacy would for the time being have to be dis-
continue^
thirdly, in matters of succession, the question whether the ,
change is one of statehood or of government has great significance
in so far as the rights and obligations to be passed on are
concernedT\
^Fourthly, the continued existence of the State renders it the ./
more compelling that the recognition of its government should
not be unduly delayed. As the government is the sole organ
" Scelle argues on this ground that there should be no distinction between the
recognition of States and the recognition of governments. In fact, he contends,
there is only one kind of recognition — the recognition of Competences Gou-
vernementales (op. cit., n. 20, p. 15 above, vol. I, p. 103).
33 Erich, loc. cit., p. 492; Rougier, La Premiere Assemblee de la Societe des
Nations, 28 R.G.D.I.P., 1921, p. 197, at p. 236.
34 [U.N.C.I.O. Documents, vol. 5, pp. 93-7.]
36 The more comprehensive term ' sovereign ' or ' power ' has been used in
such a case to indicate the object of recognition. See Bankes L.J. in The
Gagara [1919], P. 95; Hill J. in The Annette [1919], P. 105.
36 See above, p. 14, n. 1. See especially, Oppenheim, vol. I, p. 129.
104 Recognition of Governments
through which a State expresses its will, the refusal to recognise
and to deal with it would deprive the State of the means of
exercising its international rights, particularly those requiring
positive actionsZll Thus, in two cases which came before Dutch
courts concerning the applicability to Russian nationals of the
Hague Convention on Civil Procedure, 1905, the Russian Govern-
ment being unrecognised by Holland, it was held in one case that
the Convention should apply, on the ground of the continued
existence of the Russian State.38 In the other case, it was held
that, since the enforcement of the Convention depended upon
the continuance of diplomatic intercourse, it could not be
applied.39\jF seems that, so far as the exercise of international
rights is concerned, a recognised State with an unrecognised
government is in no better position than a totally unrecognised
State.40 This fact drives home the idea that recognition, whether
of States or of governments, is, fundamentally, the ascertainment
of the veritable source of power, that is to say, the location of the
governmental competence, within a body politic, and to accord
it treatment as suchTl
^ Oppenheim, I, 127; also below, pp. 128-9, 140, n. 2.
48 Lowinsky v. Receiver in Bankruptcy of the Egyptisch-Turksche Handwerk-
sigarettenfabriek ' Jaka', Ltd., 1932, Annual Digest, 1931-1932, Case No. 16.
"N. and M. Shipoff v. Elte, 1931, ibid., Case No. 17.
40 The consequences of the recognition of governments includes nearly all those
of the recognition of States (Oppenheim, vol. I, pp. 132-4).
CHAPTER 5
THE DOCTRINE OF LEGITIMACY
[ The doctrine of legitimacy maintains that every government that
comes to power in a country depends for its legality, not upon
mere de facto possession, but upon its compliance with the
established legal order of that country. Legality in municipal law
determines the legality in international law] A person or a group
of persons claiming to be the government of a particular State
in defiance of the internal law of that State is, for that reason, not
entitled to international recognition as its lawful government.
(Such a doctrine had been consistently held by early writers, includ-
ing Grotius, and it was not until Vattel that the contrary doctrine is
of de factoism was established.1 Historically, this doctrine
originally took the form of dynastic legitimism/] Its application
in international relations reached the height of its predominance
during the period of the French Revolution and its aftermath.
On July 6, 1791, the German Emperor invited the principal
Powers of Europe to join him in declaring their determination to
terminate ' the scandal of a usurpation founded on rebellion '.2
In a circular, issued on December 8, 1820, to their diplomatic
representatives, the Austrian, Prussian and Russian Sovereigns
declared : ' The Allied Monarchs being determined not to recog-
nise a Government created by open revolt, could only negotiate
with the person of the (Bourbon) King.' 3
With the fall of Napoleon, Europe fell under the sway of the
Holy Alliance. This Concert of Powers soon developed into a
Super-national league for the suppression of revolutions and the
upholding of the principle of monarchical legitimism.4 The
actions taken by the Holy Alliance practically obliterated the line
dividing international affairs and the domestic affairs of a State.
1 See a historical study of the doctrine in Goebel, op. cit., n. 21, p. 15 above,
Ch. I.
sWoolsey, Introduction to the Study of International Law, 1879, p. 49.
3 Hertslet, op. cit., n. 49, p. 21 above, vol. I, p. 660.
"•Woolsey, op. cit., pp. 49-54.
105
106 Recognition of Governments
It was more than a question of recognition or non-recognition;
it was an imposition of a regime by external force, an
intervention in the internal affairs of a State in the most flagrant
manner.
The legitimist principle is not confined in its application to
the recognition of governments in its simple form. It has also
been applied to the recognition of separatist regimes set up by
portions of a people against their legitimate sovereigns. This
principle was applied by Great Britain towards Spain and
Portugal, and formed a great obstacle to British recognition of
the Latin American States.5 In such cases,6 the recognition of
new governments and the recognition of new States are
indistinguishable.
The idea of legitimacy is closely linked with the question of
premature recognition. The very notion of premature recognition
implies a presumption in favour of the claims of the ancient power
based upon legitimacy. It is pointed out by Baty, however, that
constitutional — and dynastic — legitimacy must be distinguished
from what he termed ' international legitimacy '. In the latter
sense, the legitimate right of a government to rule is derived from
the fact of its having actually ruled, until the effort to maintain
itself had become hopeless.7 It is in this sense that we speak of
premature recognition as a violation of the right of the
' legitimate ' government.
Except during the period of the French Revolution, British
practice has generally been dissociated from the doctrine of con-
stitutional dynastic legitimacy. During the early part of this
episode, the British Government continued to communicate with
the French Ambassador, Marquis de Chauvelin. It was not until
December 27, 1792, when Chauvelin claimed for himself the
capacity of Ambassador of the French Republic, that he was
5 See Anglo-Spanish Treaty of January 14, 1809; Third Additional Article to
the Treaty of Madrid, July 5, 1814, signed August 28, 1814 (Smith, vol. I,
p. 156. See also above, pp. 84-5). Great Britain had ancient treaties with
Portugal under which she was charged with the duty of the general protec-
tion of Portugal (Smith, vol. I, p. 191).
6 Goebel seems to regard the doctrine of legitimacy more as a question of
State recognition than as one of the recognition of governments (op. cit.,
pp. 48-51, 65-6). It is submitted, however, that the question of legitimacy
enters into the question of State recognition only in the case of secession,,
and not in other cases, such as voluntary merger and the inclusion of non-
European States into the international community.
7 Baty, loc. cit., n. 13, p. 100 above, p. 446. See also below, p. 291.
The Doctrine of Legitimacy 107
informed that his new capacity could not be recognised."
Informal communication with Chauvelin, however, was not com-
pletely terminated until the death of Louis XVI.
The French Revolution appears to be the only occasion in
modern times in which recognition by Great Britain was based
on the doctrine of legitimacy. Even in this case, the application
of the doctrine was incomplete. In the Peace of Amiens, the
French Republic was recognised, and apparently it was taken for
granted that Napoleon was the international representative of the
French State.'
The delay in the recognition of King Peter of Serbia in 1903
was not in reality a revival of legitimism, although it appeared to
be so. The motive behind British policy was not so much the
deprecation of the illegal origin of the new monarch, as the
indignation and horror against the murder of King Alexander.
The British Government, it appears, was quite prepared to resume
relations with Serbia, provided the regicide officers were dismissed
from the government.10
The United States, true to its revolutionary origin, did not
^subscribe to the legitimism of the Holy Alliance School. But
[legitimism in a different form soon found its way into American
recognition practice. This may be called ' constitutional ' or
' republican ' legitimism^ Secretary Seward, who was reputedly
the originator of this doctrine, had, indeed, on several occasions
shown reluctance to granting prompt recognition,11 yet in no case
was the doctrine actually invoked. On the contrary, he even
expressed the view that a revolution when ripened ' may extin-
guish a previously existing State, or divide it into one or more
independent States '.12
The growth of constitutionalism was rapid during the opening
8 Smith, vol. I, p. 88.
'De Martens, R.T. (Cussy), vol. II (1846), p. 271 et seq.
10 Smith, vol. I, pp. 229-33. [See also Schwarzenberger, Human Rights in British
State Practice, 1 Current Legal Problems, 1948, p. 152, at pp. 159-161.]
11 E.g., Paez Government in Venezuela, 1862, Moore, Digest, vol. I, p. 149;
Melgarejo Government in Bolivia, 1865, ibid., p. 154; Mosquera Govern-
ment in Colombia, 1861, ibid., p. 138.
12 Bernard, Neutrality of Great Britain During the American Civil War, 1870,
p. 161. See also MacCorkle, who thinks that the Seward policy was not a
sharp departure from the traditional policy of de factoism (MacCorkle,
American Policy of Recognition Towards Mexico, 1933, pp. 19-24). For a
general survey of the recognition policy of the United States regarding South
America in the nineteenth century, see Graham, American Diplomacy in the
International Community, 1948.
108 Recognition of Governments
years of the present century. [Jn 1907, Dr. Tobar, former Foreign
Minister of Ecuador, advanced the doctrine that governments
which had risen to powef\ through extra-constitutional means
should not be recognised. ^The idea was embodied in the Treaty
of 1907 between the five Central American Republics.'1 The
United States, though not a party, gave it her whole-hearted
approval. 15CTt was in full accord with what is known as the
< Wilsonian Policy ' of recognition.^) In the course of his state-
ment Wilson said :
' Cooperation is possible only when supported at every turn
by the orderly processes of just government based upon law, not
upon arbitrary or irregular force. . . . Just government rests always
upon the consent of the governed. . . . Disorder, personal intrigues
and defiance of constitutional rights weaken and discredit govern-
ment. . . . We can have no sympathy with those who seek to seize
the power of government to advance their own personal interests
or ambition. . . . There can be no lasting or stable peace in such
circumstances. As friends, therefore, we shall prefer those who
act in the interest of peace and honour, who protect private rights,
and respect the restraints of constitutional provision.'
The ' Wilsonian Policy ' had special reference to the coup
d'etat of General Huerta in Mexico, February, 1913. The United
States denounced the ' usurpation ' and made known her intention
to discredit and defeat it.17
Prior to the Huerta episode, this policy had already been
experimented with in Nicaragua in 1912.18 Later, it was applied
against the Dominican Republic in 1913-1916, Ecuador in 1913,
and Costa Rica and Cuba in 1917."
In 1923, a new treaty between the original signatories of the
1907 Treaty was concluded. Apart from reiterating the principle
13 21 R.G.D.I.P., 1914, pp. 482-6.
11 Additional Convention to the General Treaty of Peace and Amity, Washing-
ton, September 17, 1907, between Costa Rica, Guatemala, Honduras,
Nicaragua and El Salvador, Article I: 'The Governments of the High
Contracting Parties shall not recognise any other Government which may
come into power in any of the five Republics as a consequence of a coup
d'etat, or of a revolution against the recognised Government, so long* as
the freely elected representatives of the people thereof have not constitutionally
reorganised the country' (2 A.J.I.L., 1908, Supplement, p. 229).
"Hackworth, vol. I, p. 187.
"See President Wilson's statement of March 11, 1913, ibid., p. 181.
"Ibid., pp. 181-2. See also MacCorkle, op. cit., pp. 86-91.
"Hackworth, vol. I, p. 188.
"Ibid., pp. 182-5, 233-7, 240-1.
The Doctrine of Legitimacy 109
of the previous treaty, it was further provided that, even if the
people had constitutionally reorganised their country, recognition
ought not to be accorded if the choice of headship or vice-
headship of the State should fall upon persons connected with the
coup d'etat or revolution.20
The United States, again, promptly declared its hearty
support.21 The treaty was expressly invoked by the United States
with regard to the revolutionary governments in Honduras,
1923,22 Nicaragua, 1926,23 Guatemala, 193021 and El Salvador,
1931. 25 In Honduras trouble arose immediately after the signing
of the treaty. The United States announced in advance that she
would not recognise the revolutionary government, if formed, and
pronounced by name her choice of the Honduras leaders eligible
for the presidency in accordance with Article II of the Treaty.26
Constitutionalism in its absolute form, fortunately, was re-
stricted in its application to the Central American Republics.27
Compared with the Treaty of 1907, the Treaty of 1923 was far
more drastic and intolerant. It virtually blocked the way to any
extra-constitutional change of government. The recognising
State, if powerful enough, might designate whom it considered to
be eligible for the headship of the government. Thus, in 1926,
after having refused to recognise Chamorro as president of
Nicaragua, the United States also rejected Uriza.28 Her final
choice of Diaz was, however, hotly challenged by Mexico,
Guatemala and Costa Rica.29
A further point of comparison between the two treaties is that,
while unconstitutionality of method creates a prima facie case
30 General Treaty of Peace and Amity, February 7, 1923, especially Article II
(17 A.J.I.L., 1923, Supplement, pp. 118-9). Salvador made reservations on
this article (Woolsey, The Recognition of the Government of El Salvador,
28 A.J.I.L., 1934, p. 325, at p. 327).
" Hackworth, vol. I, pp. 189-90.
"Ibid., p. 254.
» Ibid., pp. 265-7.
u Ibid., pp. 247-8.
25 Ibid., pp. 278-9; Woolsey, loc. cit., p. 325 et seq.
" Dennis, Revolution, Recognition and Intervention, 9 Foreign Affairs, 1930-
1931, p. 204, at p. 211.
27 Hackworth, vol. I, pp. 190, 248. The Treaty was denounced by El Salvador
and Costa Rica (with effect from January 1, 1934), ibid., p. 190.
38 Ibid., p. 267. See also Woolsey, The Non-Recognition of the Chamorro Gov-
ernment in Nicaragua, 20 A.J.I.L., 1926, p. 543.
39 Dennis, loc. cit., pp. 213-4.
110 Recognition of Governments
for non-recognition, the Treaty of 1907 permitted the original sin
to be redeemed by a constitutional reorganisation by the people.
The victorious revolutionary government, if enjoying real popular
support, would be able to legalise its position by means of a
referendum.30 On the other hand, while this provision still
remained on paper in the Treaty of 1923, it was absolutely
deprived of meaning. The leader of the victorious party, what-
ever support he might command in the country, would be for ever
debarred from the headship of the government for the reason
that he had the stupidity to belong to a party which happened to
be victorious.31 The consequence would be that after every
revolutionary change, the reins of government must be transferred
to persons who are wholly unprepared for it, persons who possess
neither popular support nor the ambition to govern.
The administration of President Hoover definitely abandoned
the test of constitutionality as a prerequisite to the recognition of
new governments, except in Central America. Secretary of State
Stimson declared on February 6, 1931, that the policy of the
Administration was to revert to the declaratory principle of
Jefferson.32
Legitimism in any form, whether dynastic or constitutional,
must have for its justification the discouragement of revolutions
and the use of violence, in contrast to the orderly processes of law,
as an instrument of politics. Its purpose is to prevent in the
intra-national sphere such social and political disorder as
is bound to reflect unfavourably in international relations. The
excesses and terrors of the French Revolution and the recurrent
political upheavals in Latin America,33 if not the genuine reasons,
30 [A recent example of this is to be found in the American recognition of the
Aphaiwong Government in Siam (United States Information Service, Daily
Wireless Bulletin, No. 628, March 3, 1948).]
31 The United States intimated that she would not recognise Chamorro, even
if he were elected (Dennis, loc. cit., p. 214).
32 Hackworth, vol. I, p. 185; Stowell, The Doctrine of Constitutional Legitimacy,
25 A.J.I.L., 1931, p. 302. For a review of United States recognition policy
in the twentieth century, see Hackworth, Policy of the United States in
Recognising New Governments in the Past Twenty-five Years, 25 Proceed-
ings, 1931, p. 120; Noel-Henry, Doctrine Americaine en Matiere de Recon-
naissance des Gouvernements Etrangers, 35 R.G.D.I.P., 1928, p. 201, at
pp. 261-6; McMahon, Recent Changes in the Recognition Policy of the
United States, 1933.
33 During 1856 there were five successive revolutionary governments in Mexico
in the course of a few months (Moore, Digest, vol. I, p. 146). Seward
observed that in fifty years there had been about sixty changes of adminis-
tration in Mexico (Wharton, Digest, vol. I, p. 547).
The Doctrine of Legitimacy 111
were certainly the immediate causes which drove other nations
into adopting a policy of legitimism.3' Professor Hyde, who seems
to be one of the few modern writers defending the legitimist
position, observes that, as unpopular governments are likely to be
short lived, and, therefore, to inspire rather than to check local
disorder which will disturb the tranquillity of foreign relations, it
might be advisable for foreign States to delay recognition, thereby
giving moral support to the opposition.35
Whatever may be said in favour of legitimism along the lines
indicated, the doctrine is open to several serious objections.
First, it is an elementary principle of international law that a
State should have the right to choose its own rulers, free from
external interference.36 To examine the constitutional legality of
the government of another State constitutes an intervention in
the domestic affairs of that State.37 This fundamental principle is
embodied in the Atlantic Charter,38 which was endorsed by the
United Nations in their Declaration of January 1, 1942.39 This
principle is so fundamental and so well established that any
deviation from it would mean either the end of the independence
of the State interfered with, or a grave injury to it justifying the
strongest remonstrances. Non-recognition on the ground of
illegitimacy of origin is not a postulate of international law."
34 On the other hand, it is also this frequency which has compelled foreign
governments to regard such revolutions lightly, and to turn away from the
legitimist doctrine (Smith, vol. 1, p. 260; [and see Dept. of State, Press Release,
No. 1020, December 21, 1948]).
35 Hyde, vol. I (1st ed.), p. 67, (2nd ed.) p. 160. For authorities rejecting the
legitimist doctrine see Fauchille, op. cit., n. 24, p. 15 above, t. I, Pt. I, p. 321;
Borchard in Wright, Legal Problems in the Far Eastern Conflict, 1941, p. 170.
38 Hall, p. 21; Lorimer, op. cit., n. 19, p. 15 above, vol. I, pp. 231-2; Halleck,
op cit., n. 21, p. 15 above, p. 82; Phillimore, op. cit., n. 21, p. 15 above,
vol. I, s. 148; Dana's Wheaton, Pt. 2, Ch. 1, s. 12; Grotius, op. cit., n. 2,
p. 97 above, Bk. II, Ch. IX, s. 8; G. F. von Martens, A Compendium of the
Law of Nations, 1802, p. 71; Le Normand, op. cit., n. 1, p. 14 above, pp. 184-5,
267; Vattel, n. 14, p. 14 above, Bk. II, Ch. IV; Rougier, op. cit., n. 2, p. 97
above, p. 483; Oppenheim, vol. I, p. 129; Fauchille, op. cit., T. I, Pt. I, p. 321.
37 Fauchille, ibid.
38 Paragraph 3 of the Atlantic Charter, signed August 14, 1941, Cmd. 6321
(1941): 'they respect the right of all peoples to choose the form of govern-
ment under which they will live '.
39 Cmd. 6388 (1942).
" See dictum of Taft, sole arbitrator, in the Tinoco Arbitration between Great
Britain and Costa Rica, 1923, [1 Reports of International Arbitral Awards,
p. 369, at p. 381, 'however justified as a national policy non-recognition on
such a ground (illegitimacy) may be, it certainly has not been acquiesced
in by all the nations of the world, which is a condition precedent to con-
sidering it as a postulate of international law ']; Holtzendorff, quoted in Le
Normand, op. cit., p. 270; Lauterpacht, Recognition of Governments, The
Times, January 6, 1950; Schwarzenberger, letter to The Times, January 9,
1950.
112 Recognition of Governments
Even if it were, it could not be permitted to compete with such a
principle as that of independence. A change of government,
particularly one achieved through violence, even though it may
be fraught with international consequences, is intrinsically a
matter solely and exclusively of domestic concern. The
legitimist doctrine, in making the legality of the government
dependent upon the judgment of foreign States, virtually removes
an internal question into the international arena, there to be
contested by the pros and cons of international politics. What-
ever the concern other States may have over the choice of the
government of a particular State, that choice must, in the last
analysis, be left to the people of that State themselves.11 [This
fact was clearly postulated by Ambassador-at-large Jessup on
behalf of the United States in connexion with its policy towards
China in 1950, although traces of legitimism are apparent in his
statement :
' The United States believes that the people of any country
have the fundamental right to determine their own forms of
government without foreign dictation. People do have the right
to change their form of government but we believe that change
must be brought about by the freely expressed will of the people
themselves — not by force. We know of no way in which people
can determine and establish their own governments except by
free and recurring elections in which people vote by secret ballot
for their own choices among the several candidates.' 41a]
Secondly, legitimism is based upon the assumption that a
form of government or set of rulers once decided upon ought to
be fixed and immutable. Under no circumstances must either be
changed unless it is proved to the satisfaction of foreign States
that the change is ' constitutional ' or ' lawful '. It is to suppose
that the first settlement that has been made cannot be improved
upon. Such a supposition has absolutely no support in fact. No
government on earth today (with the doubtful exception of Japan)
can claim that it has descended from an unbroken line of
' legitimate ' governments. Every government now existing must
41 Stimson admitted on February 6, 1931, that President Wilson forced Huerta
from power ' against the desire of the authorities and people of Mexico *
(Lippmann and Scroggs, The United States in World Affairs, 1931, 1932,
p. 334).
ila- [United States Information Service, Daily Wireless Bulletin, No. 1183,
January 19, 1950.]
The Doctrine of Legitimacy 113
at one time or another have derived its authority through extra-
constitutional means. To maintain a principle of legitimacy
would mean to contest the right of every existing government to
rule.42 If existing governments, in spite of their ' illegitimacy
of origin ', are entitled to rule, it cannot with consistency be
argued that no future revolution will be tolerated.43
Even if it be supposed that stability should have prior con-
sideration to all else, legitimism is not necessarily conducive to
that end. Secretary Stimson claimed to the credit of legitimism
that, since its adoption, ' not one single revolutionary government
has been able to maintain itself ' in the five Central American
republics.41 It is doubtful whether the cause of stability might
not have been better served had those revolutionary governments
been allowed to remain in power without outside pressure. More-
over, the choice of government at a particular time may be
erroneous, or the conditions which made the choice felicitous may
have fundamentally altered. Under such circumstances, to rule
out extra-constitutional changes would be to foster internal
oppression, hatred and subversive activities more inimical to
international stability than a brisk but decisive revolution.
Jefferson, the great revolutionary, once said: ' I hold that a little
revolution now and then is a good thing and is as necessary in
the political world as storms in the physical. ... It is a medicine
necessary for the sound health of government.' "
It is almost impossible for one State to pass judgment upon
the constitutionality of the government of another State. The
United States has on many occasions taken upon herself the task
of the guardianship of the constitution of other States. In 1917
she refused to recognise the Tinoco Government in Costa Rica
on the ground of unconstitutionality and declared that such
recognition would not be forthcoming ' even if he (i.e., Tinoco)
is elected \46 She again refused to recognise Tinoco's successor,
42 See Baty, op. cit., n. 21, p. 15 above, p. 228.
" See Dennis, loc. cit., n. 26 above, p. 210.
41 Anderson, Our Policy of Non-Recognition in Central America, 25 A.J.I.L.,.
1931, p. 298.
■"Goebel, op. cit., p. 100. Rebellion has been said to be the 'only true
. guarantee possessed by the people against bad governors ' (Hackworth„
vol. I, p. 235).
" Hackworth, vol. I, p. 234.
114 Recognition of Governments
and dictated the course which she considered to be in accordance
Avith the Costa Rican constitution.47
In 1922, the United States Commissioner in Haiti was
instructed to recognise President Borno if he was satisfied with the
constitutionality of the election.48 In 1926, the United States
■declared that the transfer of power from Chamorro to Uriza in
Nicaragua had ' no constitutional basis '.49 In 1930, after a
successful revolution in Guatemala, General Orellana was elected
t>y the Guatemalan Congress as Provisional President. The
United States Minister advised the State Department that the
appointment was illegal, being contrary to Article 65 of the Con-
stitution.50 In each of these cases,51 it may be seen that legal
formalities have to a certain extent been complied with by the
revolutionary governments. What right, then, have foreign
governments to pass judgments on questions of the constitutional
laws of another country which baffle even native experts? 52
Even if such a right could be proved, the task of deciding
foreign constitutional questions would prove impossible. The
■complexities of local politics necessarily make them more than
mere questions of law. Foreign observers may often find it
impossible even to say whether a particular change of government
is one which calls for recognition. Thus, in 1899, President
Andrade of Venezuela abruptly left the capital and there were
•doubts as to the legality of the authority of the vice-president who
succeeded him.53 The United States decided that a case calling
for recognition arose when President Alessandri of Chile left
the country in 1924, nominally on leave of absence, having turned
over the government to General Altamirano.51 In 1931 after a
successful coup d'etat in Panama the President resigned, and,
after a complicated procedure designed to give the change an
appearance of constitutionality, a new government took office.
Many States, including the United States, accepted the new
Government as the constitutional continuation of the old,
" Hackworth, vol. I, p. 237.
48 Ibid., p. 252.
19 Ibid., 267; above, p. 109.
60 Hackworth, vol. I, pp. 247-8.
51 See also the Huerta case, below, p. 115.
52 Baty, op. cit., p. 204; Moore, Fifty Years of International Law, 50 H.L.R.,
1937, p. 395, at p. 431.
53 Moore, Digest, vol. I, p. 153.
4,4 Hackworth, vol. I, p. 230.
The Doctrine of Legitimacy 115
although the whole affair was a transparent disguise.55 The
political change in Albania in 1924 was first regarded by the
State Department as a mere change of cabinet in which the
question of recognition did not arise. Later, it changed its mind
and recognised the new Government.56 An interesting question
was raised when King Constantine of Greece, who had abdicated
in 1917, was recalled to the throne in 1920. Did Constantine ever
cease to be King? Did his return require a new act of recogni-
tion? The Greeks answered in the negative. The United States
disagreed, and recognition was withheld indefinitely.57
These examples bring to light the practical difficulties in the
application of the legitimist doctrine. Even if it be conceded
that these difficulties can be overcome, there is still the danger of
excessive emphasis being placed upon technical and legalistic
considerations rather than upon the broad principles and equit-
able examinations of what is best for the country concerned.58
Further, the doctrine of legitimacy has too often been used
as a pretext for political bargaining. The elusiveness of the nature
of the problem affords ample room for arbitrary judgment. This
circumstance constitutes a powerful weapon in the hands of
ambitious foreign States. The Huerta case is particularly instruc-
tive. In February, 1913, General Huerta came to power in
Mexico after his predecessor had retired under pressure. The
American Ambassador reported on February 20 that the
Huerta Government was evidently in secure possession, and that
it took office ' in accordance with the constitution and precedents '.
In its reply on the following day, the State Department said that
it was disposed to consider the new Government * as being legally
established '. However, despite this admission of legality, the
Department would not accord it recognition until the new
Government agreed to settle certain outstanding questions
between the two countries.59 These apparently had nothing what-
ever to do with the legitimacy of the Government. It appears
that although recognition was refused on the ostensible ground
of illegitimacy the constitutionality of Huerta's Government did
" Hackworth, vol. I, pp. 268-70.
"Ibid., pp. 281-3.
"Ibid., pp. 286-7.
"Woolsey, loc. cit., n. 20 above, at p. 329.
"Hackworth, vol. I, pp. 257-9; 7 A.J.I.L., 1913, Supplement, pp. 279-92.
116 Recognition of Governments
not seem to have been seriously contested. Had Huerta complied
with the American demands he would have been recognised,
legitimate or illegitimate. The same may be said of the Theodore
regime in Haiti, 1914,60 and the Obregon regime in Mexico, 1921."
[After the Ninth International Conference of American States,
Bogota, 1948, the doctrine of legitimism suffered a serious set-
back. In Resolution 35 of the Final Act of Bogota, the American
States declared :
' That continuity of diplomatic relations among the American
States is to be desired.
' That the right of maintaining, suspending, or renewing diplo-
matic relations with another government shall not be exercised
as a means of individually obtaining unjustified advantages under
international law.
' That the establishment or maintenance of diplomatic relations
with a government does not imply an opinion on the domestic
policy of that government.' 62
The United States was a party to this Resolution and applied
its principle in November, 1948. In October a revolution led
by General Odria overthrew President Bustamante of Peru, and
installed General Odria in his stead. On November 22, the State
Department, referring to Resolution 35 of the Final Act of
Bogota, announced that ' the United States will continue normal
diplomatic relations with Peru, thus giving recognition to the
three weeks old government headed by General Odria \03
This Resolution is only expressive of the present United States
policy towards recognition.64 Nevertheless, the United States
predilection for constitutional legitimacy is well known and not
without effect. Thus in the note of September 20, 1949,
recognising the government of Hashim Al-Attasi, which had
established itself in Syria on August 14, it was pointed out that
' the promulgation on September 11, 1949, of a new electoral law
reflecting the Syrian Government's intention to hold elections
and form a constitutional government has . . . been noted V5] .
s0 Hackworth, vol. I, pp. 250-1.
61 Ibid., pp. 261-3.
62 [Dept. of State, Press Release, No. 400, May 21, 1948.]
63 [Dept. of State, Wireless Bulletin, No. 275, November 22, 1948.]
64 Hyde, vol. I, p. 182. [Cx., United States attitude to Communist China, 1950,
above, p. 112, below, pp. 119-20, 124, n. 39.]
65 United States Information Service, Daily Wireless Bulletin, No. 1086,
September 21, 1949.
CHAPTER 6
THE DECLARATORY OR DE FACTO
DOCTRINE1
\Jhe alternative to the legitimist doctrine is the theory that the \1
existence of a government within a State is a question of fact}
The fact that a person or a group of persons governs is the
decisive test of the existence of the government and its right to
rule. A foreign State, through recognition, acknowledges this
fact and treats the government in that capacity.2 It does not pass
judgment upon the form or origin of that government2*; nor should
considerations of political or economic advantages or questions
of ideologies and the like be taken into account. This view is
maintained by numerous writers on international law.3 PEven
those who hold the constitutivist view of the recognition orStates \/
are obliged to accept the test of de facto control for the recogni-
tion of governments.* Hyde admits that * in theory, the question
involved is merely one of fact ', and that, in the long run, a party
that has ' firmly established itself in power and thus appears to
have gained permanent control ' will have to be recognised^}
1 It is 'declaratory' with regard to the effect of recognition; it is ' de facto '
with regard to the object recognised.
2 [This principle rejecting the theory of legitimacy and upholding that of de
factoism was affirmed by the Franco-Chilean Arbitral Tribunal in the
Dreyfus Case (1901) (Descamps and Renault, Recueil International des Traites
du XXe Siecle, an 1901, p. 173, at p. 394).]
2a [See, for example, Sir Terence Shone, British representative to the Security
Council, on recognition of the Communist government in China, The Times,
December 3, 1949; Secretary of State Acheson concerning the recognition
of the Arias government in Panama, United States Information Service, Daily
Wireless Bulletin, No. 1158, December 15, 1949.]
3 Baty, op. cit., n. 21, p. 15 above, pp. 204, 208; Scelle, op. cit., n. 20, p. 15
above, vol. I, p. 101; Fauchille, op. cit., n. 24, p. 15 above, T. I, Pt. I, 321;
Rougier, op. cit., n. 2, p. 97 above, p. 486. Pinheiro-Ferreira, note in G. F.
von Martens, Precis du Droit des Gens, 1864, vol. I, p. 224; Goebel, op. cit.,
n 21 p 15 above, p. 66. See also Resolutions of the Institute of Inter-
national Law, 1936, Article 10 (30 A.J.I.L., 1936, Supplement, p. 186);
Project II, Article 8 of the International Commission of Jurists, 1927 (22
ibid., 1928, Special Supplement, p. 241); Resolutions of the International
Law Conference of London, 1943 (Bisschop, London International Law
Conference, 1943, 38 A.J.I.L., 1944, p. 290, at p. 294).
E.g., Anzilotti, op. cit., n. 7, p. 14 above, vol. I, p. 258; Oppenheim, vol. I,
pp. 127-8; Le Normand, op. cit., n. 2, p. 14 above, p. 268.
' s Hyde, vol. I (1st ed.), pp. 66-7.
117
118 Recognition of Governments
[Professor Lauterpacht has gone so far as to maintain that
there is a duty to recognise a government 'provided that the
conditions presented by international law are fulfilled '. These
conditions are, he says, permanency and effectiveness.5* Dr.
Schwarzenberger, on the other hand, maintains that the recogni-
tion of governments, like that of States, is purely discretionary.5"
This latter statement is in keeping with Professor Smith's
conclusions regarding British practice : ' It is clear that the
question of recognition is fundamentally a question of policy
rather than a question of law. That is to say, there is no such
thing as a " right " to recognition, and every State is entitled to
grant or to withhold the recognition, whether of a new State or
of a new Government, upon grounds of policy which must
necessarily be determined by itself.' 50]
States, in their practice, are generally agreed that the
declaratory doctrine of recognition is most consistent with justice
and common sense. The acceptance of the doctrine, however,
did not stop them whenever their self-interest was affected from
resorting to various subterfuges in order to evade the full con-
sequences of the doctrine. ^British practice has generally followed
the de facto principle/.) Canning, when charged by Spain with
having abandoned his former legitimist stand, retorted that Britain
had never been a supporter of the legitimist view. Britain, he
declared, did not hesitate to deal with the Directory of France
in 1796 and 1797, with the Consulate in 1801, and with Bonaparte
in 1806.7 This principle was followed in every successive revolu-
tion in France.8 Lord Malmesbury explained to the House of
Lords :
' It has been, as your Lordships all know, our usual policy for
a period of 22 years— since the Revolution of 1830 in Paris — to
acknowledge the constitutional doctrine that the people of every
country have the right to choose their own sovereign without any
foreign interference; and that a sovereign having been freely
5a [Recognition of Governments, The Times, January 6, 1950J
5b [Letter to The Times, January 9, 1950.]
80 [Smith, vol. 1, p. 77. See also Oppenheim, 4th edition by Sir Arnold McNair
vol. 1, pp. 152-53.]
"See exceptions, above, pp. 106-7. [See also Lord John Russell's dispatch
concerning Mexico, 1861, 52 B.F.S.P., 1861, p. 237, cited in Dr. Schwarzen-
berger's letter, loc. cit.]
7 Smith, vol. I, p. 168.
• Recognition of Louis Philippe, 1830, ibid., pp. 101, 104-5; of Louis Napoleon
ibid., pp. 107-14; and of the Third Republic, ibid., p. 115.
Declaratory or De Facto Doctrine 11 9"
chosen by them, that sovereign, or ruler, or whatever he may be
called, being de facto the ruler of that country, should be
recognised by the sovereign of this.' "
The apparent incongruous British conduct in the case of the
revolt of Dom Miguel in Portugal, 1820-1834, must be explained
by the fact that, despite the Miguelist control over practically the
whole of Portuguese territory, the struggle was not abandoned by
their opponents. The decision of the British Government to wait
for the outcome of the war was justified by the final collapse of
the Miguelist regime in 1834.10
During the Spanish revolutions, 1868-1875, British recogni-
tion was extended to the successive revolutionary governments.11
Lord Derby declared in the House of Lords, on March 8, 1875,
that recognition had been accorded to any government, ' which,
as a fact, the Spanish people acknowledged and obeyed V2 The
non-recognition of the Soviet Government in Russia seems to be
one of the most flagrant departures from the long-standing de facto
principle, although it was not precisely on the ground of
legitimacy. [Again, in 1949, the British Government departed
from the de facto principle. At a time when the Chinese Com-
munist authorities were in control of most of China, including all
the big cities, Mr. Attlee declared : ' It is much too early to
decide on the question of recognition. We have a very confused
situation. ... It is very previous to judge what the Communist
Government will be like. I should judge them by what they
do. , . . The question of relations between us and that Government
will depend on their actions, and it is premature to judge what
lines they will take. ... I am not prepared to come to a judgment
at the moment on the question of recognition.' " Six months:
later, Mr. Bevin made it clear that British policy in this matter
was being framed in consultation with ' Commonwealth and other
friendly Governments V3a In January, 1950, however, at a time
when the Governments of Australia, Canada and the United
States refused to do likewise, the Government of Great Britain,
' having completed their study of the situation arising from the
'Smith, vol. I, p. 114.
10 Ibid., pp. 170-80. See, however, below, p. 120, n. 17.
"Ibid., pp. 197-205.
"Ibid., p. 205.
13 [House of Commons, May 5, 1949, Pari. Debates, vol. 464, col. 1347.]
,3a [House of Commons, November 16, 1949, Pari. Debates, Vol. 469, col. 2013.J
120 Recognition of Governments
formation of the Central People's Government of the People's
Republic of China, and observing that it is now in effective control
of by far the greater part of the territory of China, have this day
recognised that Government as the de jure Government of
China V3"]
fThe practice of the United States from the early days of her
J statehood till the beginning of the present century is marked by
adherence to the de facto principle?^ The rule was laid down
in the memorable words of Secretary Jefferson : ' It accords with
our principles to acknowledge any government to be rightful
which is formed by the will of the nation, substantially declared.' 15
The right to choose their own government, he urged, is a right
whereon the United States is founded, and must not be denied
to other peoples. Whether the choice be a king, convention,
association, committee, president, or anything else should make
no difference to foreign States so long as it represents the will of
the nation.16
The course thus set was followed throughout the century.17
A few quotations will suffice to illustrate the consistency of the
practice. Thus, in 1829, Secretary Van Buren declared with
lsb [The Times, January 7, 1950. See Civil Air Transport Inc. v. Chennault
(1950), Green, The Recognition of Communist China, 3 International Law
Quarterly, 1950, p. 418.]
11 For an analysis of American policy concerning the recognition of Govern-
ments, see Goebel, op. cit., Ch. IV, VIII; Noel-Henry, loc. cit., n. 32, p. 110
above, p. 245 et seq.; also above, p. 110, n. 32.
15 Note to Gouverneur Morris, American Minister at Paris, March 12, 1793
(Moore, Digest, vol. I, p. 120).
"Ibid.
" Numerous official dispatches, in which the de facto principle is either applied
or reaffirmed, may be found in the Digests of Moore and Hackworth (Moore,
vol. I, pp. 96, 124, 126, 127, 128, 129, 131, 133, 134, 136, 137, 138, 150 n.f.,
153, 155, 156-7, 161, 162, 163; Hackworth, vol. I, pp. 274, 275, 284, 297,
299, 309, 311, 316, 318). During the French Revolution, the United States
was the only Power adhering to the de facto doctrine. For a time, the
American Minister constituted the only member of the diplomatic corps
in Paris (Paxson, op. cit., n. 3, p. 79 above, p. 37). With the exception of
the case of Spain, the United States even recognised the satellite governments
established with the support of Napoleonic arms in other countries (Moore,
International Arbitrations, vol. V, p. 4577; Moore, Digest, vol. 1, pp. 128,
132. See, however, below, p. 299, n. 49). The recognition of Dom Miguel
in Portugal by the United States was an application of the de facto principle,
although the result was exactly contrary to the British policy. The differ-
ence was not in the principle, but in the appreciation of facts. The United
States had mistakenly (judging by the after-events) accepted the Miguelist
rule to be definitive (Baty, op. cit., pp. 207, n. 1; 214, n. 1). In such a case,
as also in other cases where there are two claimants to power (e.g., the
Stadt-holder and States General in the United Provinces in 1785; the Spanish
Junta and Joseph Bonaparte in Spain in 1808; Juarez and Miramon in
Mexico in the mid-nineteenth century) the question is the subtle one of
judging, on the basis of facts, whether the former ruler has been effectively
displaced (Baty, loc. cit., n. 13, p. 100 above, pp. 445-51).
Declaratory or De Facto Doctrine 121
reference to the new Government in Colombia : ' So far as we are
concerned, that which is the government de facto is equally so
de jure.' 18 President Pierce declared in his message to Congress,
May 15, 1856:
' It is the established policy of the United States to recognise
all governments, without question of their source or organisation,
or of the means by which the governing persons attain their power
provided there be a government de facto accepted by the people
of the country . . . Their determination, whether it be by positive
action or by ascertained acquiescence, is to us a sufficient warrant
of the legitimacy of the new government.' 19
In 1900, Acting Secretary of State Hill wrote, with reference to
the situation at Bogota :
'The policy of the United States, announced and practiced
upon occasion for more than a century, has been and is to refrain
from acting upon conflicting claims to the de jure control of the
executive power of a foreign state; but to base the recognition of
a foreign government solely on its de facto ability to hold the
reins of administrative power.'20
This policy was so closely followed that recognition became
almost automatic. In 1848, the United States Minister to France
accorded recognition to the Provisional Government of France
without waiting for instructions from his government. His action
received approbation from President Polk." On many occasions
blank forms of credence were sent to legations abroad to be com-
pleted by them whenever, in their judgment, a de facto government
had been established. This procedure was followed even though
the new governments were the Empire of Napoleon and the
restoration of Louis XVIII.22 On other occasions, the American
diplomatic representatives were delegated with discretionary
authority to recognise de facto governments.23- "
18 Moore, Digest, vol. I, p. 137.
"Ibid., p. 142.
"Ibid., p. 139.
21 Ibid., p. 125.
22 Ibid., p. 122.
23 Ibid., pp. 144, 147, 148. In his instruction to McLane in Mexico, Secretary
Cass especially pointed out that the discretion given to him to recognise
was a discretion to ascertain the state of facts in Mexico (MacCorkle,
op. cit., n. 12, p. 107 above, pp. 51-2).
24 For the acceptance of the declaratory principle in international tribunals,
see the Tinoco Case, 1923, below, pp. 146, 148; the Cuculla and the McKenny
Cases (1876), below, pp. 147-48; the Jarvis Case (1903), Ralston, Law and
Procedure of International Tribunals, 1926, s. 553.
122 Recognition of Governments
[The application of the de facto doctrine was modified by two-
developments in the practice of States, notably the United States,
which tended to divert the doctrine from its natural course. One
is the requirement that, in order for a new government to be
recognised, its acceptance by the people should be evidenced by
a certain democratic procedure. The other is the requirement
that the new government should give proof of its ability and
disposition to fulfil the international obligations of the State?^
The authorship of the democratic test has been attributed by
some writers25 to Jefferson, who required that a government ire
order to be deserving of recognition must be in accord with ' the
will of the nation, substantially declared '." To the present
writer, it seems that Jefferson had merely laid down a principle,
and not prescribed a test. A democratic test would ill accord
with his subsequent opinion that kings and conventions are
equally entitled to recognition. The republican test seems to have
first received concrete formulation in the hands of Seward, who,,
in an instruction of March 8, 1868, said :
' The policy of the United States is settled upon the principle
that revolutions in republican States ought not to be accepted until
the people have adopted them by organic law, with the solemnities
which would seem sufficient to guarantee their stability and.
permanency.' 27
Thereafter, the test was not only frequently invoked by the
United States,28 [and[was invoked by Ambassador-at-large Jessup
in 1950 when explaining United States policy towards
China^8*]. It also gained acceptance among European States.
Thus, Bismark refused to make peace with the French
Government unless it had the authority of a National Assembly."'
"Baty, op. cit., pp. 215-6.
" Note to Gouverneur Morris at Paris, November 7, 1792 (Moore, Digest,
vol. I, p. 120).
"Quoted in Hyde, vol. I, p. 162, n. 8. Previously, although reluctant to>
recognise revolutionary governments, Seward merely demanded ' conclu-
sive evidence ' of de facto control, but prescribed no concrete test. See Moore,.
Digest, vol. I, pp. 149, 154. This test is accepted by Rougier, who regards,
a ' legal * government as one which is ratified by a representative assembly
(op. cit., n. 2, p. 97 above, p. 484), and also the London International Law-
Conference of 1943 (Paragraph 3 of the Resolutions, Bisschop, loc. cit.,.
n. 3, above, p. 294).
" Moore, Digest, vol. I, pp. 144, 160; Hackworth, vol. I, pp. 225, 292, 293.
28a [United States Information Service, Daily Wireless Bulletin, No. 1183,.
January 19, 1950, see p. 112 above.]
a' Baty, So-called De Facto Recognition, 31 Yale L.J., 1922, p. 460, at p. 472,
n. 5.
Declaratory or De Facto Doctrine 123
Great Britain, Germany, Austria, Italy and Spain jointly recog-
nised the Republican Government of Portugal in 1911, when the
latter was confirmed by a general election.30 In 1924, the British
Minister informed the Greek Government that his Government
4 accept the verdict of the plebiscite as representing the wishes of
the Greek people, and they formally recognise the regime thus
established '.31 In the Central American Treaty of 1907, as has
been pointed out, the doctrine of legitimacy was allowed to be
modified by the constitutional reorganisation of the country by
the people.
[In 1949 both the United Kingdom and the United States
accorded recognition to the Government of Israel after elections
had taken place in that country. In both cases, the recognition
of the Government was accompanied by recognition of the State."
The United Kingdom extended de facto recognition without
making any reference to the Israeli elections 33 ; the United States,
however, expressly stated: ' On October 24, 1948, the President
stated that when a permanent government was elected in Israel, it
would promptly be given de jure recognition. The votes have
now been counted, and this Government has been officially in-
formed of the results. The United States Government is therefore
pleased to extend de jure recognition to the Government of
Israel.' 34]
CJWhat is the function of such a test^ It is certainly formidable t
evidence of the willing approval of the people of the regime in
question. But is it necessary that every government should
command the voluntary and positive support of the people? '*
(Is not the ability to exact habitual, though not willing, obedience
sufficient?^! we demand that the obedience should be voluntary,
we must be compelled to deny that any form of government other
than a democracy (and what is ' democracy '?) is entitled to
" Smith, vol. I, p. 259.
" Ibid.
32 [See above, pp. 101-102.]
33 [Foreign Office, Press Release, January 29, 1949.]
34 [State Dept., Bulletin, vol. 20, No. 502, February 13, 1949. The recognition
took effect as from January 31.]
'"Answered in the negative in Oppenheim, vol. I, p. 127; Hyde, vol. I (1st
ed.), p. 67, n. 1, (2nd ed.), p. 163, n. 9; Hackworth, vol. I, p. 178; Larnaude
Les Gouvernements de Fait, 28 R.G.D.I.P., 1921, p. 457, at p. 493; Williams,
La Doctrine de la Reconnaissance en Droit International et ses Developpe-
ments Recents, 44 Hague Recueil, 1933, p. 203, at p. 249; Lauterpacht, The
Times, January 6, 1950; Schwarzenberger, ibid., January 9, 1950.
L-
124 Recognition of Governments
recognition. We would find ourselves in the same error as those
who follow the doctrine of legitimism.
Legality, says Le Normand, is the expression of the will of
the nation in a determined form. It is not a principle of
international law. States attach juridical effects to the will of
the nation, not to the form in which that will is expressed.36
Legitimacy claims to be a right above the will of the nation.37 If
a particular form is prescribed for the expression of the national
will, then we are recognising a right above the national will,
equivalent to the requirement of legitimacy. Even if it is con-
ceded that a democratic test be desirable, some writers have
doubted whether such institutions as popular votes are really
capable of reflecting the genuine will of the people, having regard
to the fact that voting may be controlled and manipulated."
Ijhe requirement of the ability and disposition of a new
government to fulfil the international obligations of the State has
played an increasingly important role in the recognition policy
of the United States since the last quarter of the nineteenth
century39 and has received the support of a large number of
American jurists.40 The policy is obviously the reflection of
American economic power and investments abroad/)1 Secretary
Evarts, however, chose to give it a legal explanation. He said 1
3"Le Normand, op. cit., pp. 270-1. Also, Rougier, op. cit., pp. 485-6.
37 Le Normand, op. cit., p. 270.
3,Baty, op. cit., p. 215.
3' In some instances the new government was required to prove its ' capacity ',
' power ', ' competence ' or ' position ' to respect international obligations
(Moore, Digest, vol. I, pp. 139, 153, 163; Hackworth, vol. I, p. 254). In
other cases the ' disposition ' to respect international obligations was alone
required (Wharton, Digest, vol. I, pp. 546, 547; Hackworth, vol. I, pp. 224,
227, 228, 229, 230, 232-3, 247, 249, 271, 276, 296, 308). [The State Department
note issued after the establishment of the Communist government in China
pointed out ' that the announcement of the inauguration of a Central China
Communist regime contains no assurance that this regime is prepared to
assume the international obligations which devolve upon a government of
* China ' (United States Information Service, Daily Wireless Bulletin, No. 1097,
October 4, 1949).]
40 Article 5 of Project VI of the American Institute of International Law, 1925,
20 A.J.I.L., 1926, Supplement, p. 310; Article 8(2) of Project II of the
International Commission of Jurists, Rio de Janeiro, 1927, 22 ibid., 1928,
Special Supplement 241. Also Kunz, The Position of Argentina, 38 ibid.,
1944, p. 436, at p. 437. Goebel thinks that the ' power to carry out inter-
national obligations ' is the sole basis for the recognition of governments,
even to the exclusion of the requirement that ' a greater part of the nation
render obedience ' (op. cit., p. 66). Fauchille also regards fulfilment of inter-
national obligations as a requirement {op. cit., t. I, Pt. I, p. 321).
41 MacCorkle, op. cit., p. 23.
Declaratory or De Facto Doctrine 125
' . . . while the United States regard their international com-
pacts and obligations as entered into with nations rather than with
political Governments, it behooves them to be watchful lest their
course toward a Government should affect the relations to the
nation. . . .' "
[It is not only the United States that has required an assurance
of respect for international obligations before extending recogni-
tion to a new government. Thus in 1861 Lord John Russell
pointed out that ' the instructions addressed to Mr. Mathew, both
before and since the final triumph of the Liberal Party, made the
recognition by Great Britain of the constitutional Government
contingent upon the acknowledgment by that Government of the
liability of Mexico for the claims of British subjects, who, either
in their persons or their property, for a long series of years can be
proved to have suffered wrong at the hands of successive Govern-
ments in Mexico V28, Similarly, in 1949, Dr. Evatt, Australian
Minister for External Affairs, declared the Communist govern-
ment of China could not be recognised ' in the absence of specific
assurances that the territorial integrity of neighbouring countries,
notably Hong Kong, would be respected and that the new China
would discharge all international obligations '.42b]
flf it is true that treaties bind the State and are unaffected by
changes in government, it must be submitted that to prescribe the
ability and disposition to fulfil international obligations as a
condition for the recognition of a new government would seem;
for that very reason, to be tautologousT) The ability to fulfil inter^
national obligations must be considered as implied in the ability
to govern. A government which is unable to represent the will of
the nation internationally and to compel the enforcement of its
international obligations is no government.
As to the disposition to fulfil international obligations, it is
believed that, since the international obligations are the -obliga-
tions of the State, the new government has no option but to fulfil
them. Its disposition or indisposition is irrelevant The assur-
ance it may give does not create greater security than the original
" Wharton, Digest, vol. I, p. 548.
4aa [Dispatch to Sir C. Wyke, March 30, 1861, 52 B.F.S.P., 1861, p. 237, cited
in Dr. Schwarzenberger's letter to The Times, January 9, 1950.]
*"> [The Times, October 26, 1949.]
1/"
126 Recognition of Governments
undertakings themselves." The assurance may have the effect
of estopping the new government from denying the existence
of such obligations; but if the obligations are well founded, they
could not be denied in any case." The very fact that an assurance
is required might even lead the new government to think that it
is not bound by any obligation other than those with regard to
which the assurance is given. Fiore has suggested that a new
government proclaiming principles subversive to fundamental
laws of the international community has no right to be recog-
nised." The same answer that is given to the suggestion that a
State may be refused recognition for unwillingness to observe
international law may be applied with equal force here,"
a fortiori for the reason that the State itself has already been
recognised. It is not a question of refusing recognition, but of
bringing the recalcitrant government to account according to
international law.47
\^> \ Despite the theoretical superfluity of this requirement, it has
often been used as a pretext for withholding recognition when-
ever the wish of the recognising State is not fully complied withT)
It is no longer a question of the fulfilment of obligations according
to international law, but a question of the fulfilment of obligations
according to the wish of the recognising State. ' International
Obligations ' has been interpreted to mean the settlement of
border claims, the use of boundary rivers, the improvement of the
administration of justice and the agreement to submit certain
outstanding disputes to arbitration.48 It has also been interpreted
43 [Nevertheless, the United States opposed the application of Albania for
admission to the United Nations on the ground that the Albanian Govern-
ment refused to acknowledge the treaties of its predecessor, Green, Member-
ship in the United Nations, 2 Current Legal Problems, 1949, p. 258, at p. 270.]
" In recognising the successor to the Tinoco Government in Costa Rica
(1917-1919), the British Government did not exact any assurances, but in
his arbitral award in the Tinoco Arbitration, 1923, Chief Justice Taft held
that Costa Rica was nevertheless bound by contracts entered into by the
Tinoco Government with British nationals (1 Reports of International
Arbitral Awards, p. 369 et seq.).
45 Fiore, op. cit., n. 25, p. 15 above, Article 62.
16 Above, pp. 61-2.
" Oppenheim, vol. I, p. 129.
** These were some of the demands made by the United States on Mexico
as the price for the recognition of the Huerta Government (Hackworth,
vol. I, pp. 257-8). See also the recognition of the Diaz Government in
Mexico, 1876 (Moore, Digest, vol. I, p. 148; MacCorkle, op. cit., pp. 67-81),
the Estrada Government in Nicaragua, 1910 (Hackworth, vol. I, p. 264),
the Zogu Government in Albania, 1925 (ibid., p. 283).
Declaratory or De Facto Doctrine 127
to mean the consent to conclude a treaty of amity and commerce
on terms proposed by the recognising State.49 With special refer-
ence to the recognition of the Soviet Government in Russia,
Secretary Hughes said in 1923:
' These obligations include, among other things, the protection
of the persons and property of the citizens of one country law-
fully pursuing their business in the territory of the other and
abstention from hostile propaganda by one country in the territory
of the other.' 50
ffh
Che lack of precision in the meaning of the term * international
■obligations ', coupled with the looseness of manner in which it has
been employed, has played into the hands of imperialistic Powers.
The fulfilment of international obligations has been made into a
condition for recognition, not because it is essential to the exis-
tence of the government, but because, by holding out to the new
government the coveted prize of recognition, it could be brought
into a more receptive mood for otherwise unacceptable demands?]
Its retention in the practice of States merely stands as testimony
to their unwillingness to give up a convenient instrument of
imperialistic policy, which is of doubtful propriety and efficacy."
[In an address before the Council on Foreign Relations in
1931, Secretary Stimson restated the practice of the United
States as insistence on the principle of de factoism enunciated by
Jefferson in 1792:
' The practice of this country as to the recognition of new
governments has been substantially uniform from the days of
Secretary of State Jefferson to the days of Secretary of State Bryan
in 1913. . . . The general practice, as thus observed, was to base
the act of recognition, not upon the constitutional legitimacy of
the new government but upon its de facto capacity to fulfill its
obligations as a member of the family of nations. . . . The present
administration has declined to follow the policy of Mr. Wilson
and has followed consistently the former practice of the govern-
ment since the days of Jefferson.' "]
"*• The United States recognition of the Obregon Government in Mexico, 1921
(Hackworth, vol. I, pp. 261-3).
"Ibid., p. 178. See also ibid., p. 303. For the British attitude, see Smith,
vol. I, pp. 239-41, and Lord John Russell's dispatch of 1861, n. 42a, above.
51 See Brown, The Recognition of New Governments, 26 A.J.I.L., 1932, p. 336,
at p. 338.
-" [Cited in Brown, toe. cit., n. 22, p. 102 above, p. 622.]
V
v/
128 Recognition of Governments
The unfortunate consequences of the practice of withholding
recognition on grounds other than the absence of de facto control
have given rise to a doctrine known as the ' Estrada Doctrine '.
It is contained in a declaration 5S by the Mexican Foreign Secre-
tary, Senor Don Genara Estrada, in which it was stated that,
the granting of recognition being an insulting practice implying
judgment upon the internal affairs of foreign States, the Mexican
Government would henceforth confine itself to the maintenance
or the non-maintenance of diplomatic relations with foreign
governments without pronouncing judgment upon the legality of
those governments. [A similar sentiment is to be found in
Resolution 35 of the Final Act of Bogota adopted by the Ninth
International Conference of American States, 1948, and finds
expression in the American announcement concerning the
revolutionary administration of General Odria in Peru."]
The doctrine is, in reality, a more extreme form of de factoism.
In countries where revolutionary changes are endemic and are
regarded as equivalent to general elections, the Estrada doctrine
is almost a matter of practical necessity.55
In principle, in treating whoever in fact exercises the powers of
government as the representative of the State, the doctrine is
entirely consistent with the declaratory view. But, in practice,
it does not yield all the advantages envisaged by its originator.
The diplomatic representatives of foreign States would be com-
pelled, unless the revolution succeeded overnight, to choose among
rival parties one whom they could deal with as representative
of the State.56 The very fact of making the choice would itself
amount to recognition. Thus considered, the Estrada doctrine
does not seem to distinguish itself fundamentally from the
traditional de facto principle.
The answer to the question whether there is a right on the
part of the new government to be recognised must be subject to
the same considerations as is the question of the recognition of
"25 A.J.I.L., 1931, Supplement, p. 203.
"[See above, p. 116.]
" British practice in such circumstances has been similar to that envisaged in
the Estrada doctrine (Smith, vol. I, p. 260).
"Jessup, The Estrada Doctrine, 25 A.J.I.L., 1931, p. 719, at p. 722; the same,
A Modern Law of Nations, 1948, pp. 60-62.
Declaratory or De Facto Doctrine 129
StatesT^It depends very much^upon the sense in which the word
' recognition ' is being used. (Jtt^may mean the acceptance of the
fact' of the existence of the new government as the government of
the State in question, and / or the expression of the intention to
enter into political relations with it. As recognition in the first
sense requires no overt act, any act of recognition must be in the
second sense and it must consequently be in the nature of a ' free
act '.^7 On tne other hand,[pnce the effectiveness of the new ,
government is established beyond doubt, a foreign State, although
free not to enter into political relations with it, cannot, however,
ignore its existence or deny its capacity to represent the State
without trenching upon the right of the State itself.58 A State
as an international person is entitled to certain inherent rights."
It would make nonsense of these rights if a foreign State were
permitted to ignore the government which exercises them on
behalf of the State. In this sense, recognition is a practical
necessity/ unless the foreign State can manage to have absolutely
nothing to do with the State whose government it does not
recognise.60 Unless this state of aloofness can be achieved, the
right to choose its own government and the right of that govern-
ment to be recognised may be regarded as inherent in the rights
of the State as an international person.61
[However, in practice, States have not regarded a right to be
recognised as among the inherent rights of States, and no such
right is included in the Draft Declaration on Rights and Duties
57 Resolution of the Institute of International Law, 1936, Article 10, 30 A.J.I.L.,
1936, Supplement, p. 186; Fiore, op. cit., Articles 59, 60. Cf. above, p. 62.
58 Le Normand, op. cit., pp. 184-191. This also seems to be the view of the
London International Law Conference, 1943, which, while maintaining that
foreign States are free ' to defer the resumption of diplomatic relations
for political reasons ', declares that recognition should ' not be determined
on any consideration other than the effectiveness, stability and nature of
the power exercised by the government seeking recognition' (Bisschop, loc.
cit., note 3, p. 117 above, p. 294).
59 See Article 8 of the Resolution of the Institute of International Law, 1936
(30 A.J.I.L., 1936, Supplement, p. 186); [see also Article 9 of the Charter of
the Organisation of American States, Bogota, 1948 (Dept. of State, Bulletin,
vol. 18, p. 666)].
s0 The difficulty of achieving this is made clear by Langer, note 28, p. 60 above,
passim.
" For this view, see Rougier, op. cit., p. 483; Le Normand, op. cit.,
pp. 184-5; Oppenheim, vol. I, pp. 127-9; Borchard, The Diplomatic Protec-
tion of Citizens Abroad, 1928, pp. 261, 267; Article 4 of Project VI of the
American Institute of International Law, 1925 (20 A.J.I.L., 1926, Supplement,
p. 310); also above, p. 104.
130 Recognition of Governments
of States adopted by the International Law Commission.6" No
State has ever been sued for damages for failure to recognise
another's government, and recognising States constantly show
that they regard recognition purely as an act of discretion and
of policy.63]
! Report of the First Session, U.N. Doc. A/ 925, 1949,' pp. 8-9.
1 [See references to Lauterpacht, Schwarzenberger, Smith and Sir Arnold
McNair's edition of Oppenheim, n. 5a, 5b, 5c, p. 118 above.]
PART THREE
LEGAL EFFECTS OF RECOGNITION
CHAPTER 7
THE EFFECTS OF RECOGNITION
8
TN theory, recognition, whether of a State or of a government,1
J- is declaratory of the fact of the existence of such a State or
government, and cannot, therefore, in itself, be productive of legal
effect2 creative of State personality or governmental capacity.
These effects can only be the result of the existence of the State
or government in question, and not the result of their recognition))
In practice, however[_inasmuch as courts have committed them-
selves to the doctrine of judicial self-limitation,3 the test of factual
existence has often been eclipsed by the necessity of political
acknowledgment. The courts cannot rely upon their own
appreciation of facts and treat it as conclusive, until it has been
confirmed by the political department] ^Political recognition thus
becomes instrumental in giving rise to legal effects, because it is
instrumental in bringing to judicial knowledge the fact of the
existence of the State or government in question^ It is the purpose
of the present inquiry to discover how far the declaratory theory
is affected by the doctrine of judicial self-limitation, and whether,
even under such a doctrine, the fact of State or government
1 The effects of the recognition of States and the recognition of governments
are similar, except in matters of succession. A new government derives
its title in its own right as representative of the State person, whereas a new
State derives it through succession. In the present discussion, wherever
reference is applicable to both States and governments, the words ' power '
or ' regime ' will be used. When speaking of ' unrecognised governments ',
we mean unrecognised general de facto governments, as distinguished from
local de facto governments. For distinction, see below, p. 327. Also, see
different meanings of the term ' de facto ', below, p. 270 et seq. Here it is
necessary to follow the common usage, taking the term ' de facto Govern-
ment' to mean either an unconstitutional or an unrecognised government,
or both, as the case may be.
2 It is not denied that recognition produces important political effects and
certain legal effects, such as estoppel against subsequent denial of the exist-
ence of previously recognised States or governments (see above, p. 78). In
the present discussion, this class of legal effect is not under consideration.
3 Attention is drawn, in particular, to Anglo-American practice. See below,
p. 244 et seq. For the similar attitude of French courts regarding acts of
unrecognised Soviet authorities, see Lagarde, La Reconnaissance du Gou-
vernement des Soviets, 1924, p. 115 et seq.
133
v
v/
134 Legal Effects of Recognition
existence may, consistently with the fundamental requirements
of justice, be completely, and in the long run, ignored.
An examination of the legal effects of recognition must
necessarily involve also an inquiry into the legal effects of non-
recognition, for they are two sides of the same problem. If
evidence can be adduced to show that States and governments,
despite non-recognition, do by their factual existence give rise to
legal rights and duties, then it would be proper to conclude that
recognition, in itself, is not productive of legal effects.
CHAPTER 8
THE RIGHT OF UNRECOGNISED POWERS
TO SUE
|JTo what extent is the right of foreign powers to bring actions in
a court of a State dependent upon their recognition by that"
State? ^The question was first decided verity of Berne v. Bank
of EnglandXby the English Court of Chancery in 1804.2 The
plaintiff moved for an injunction to restrain the defendant from
dealing with certain funds, standing in the name of ' the old
Government of Berne before the Revolution '. Eldon L.C.,
refusing to make the order, observed that Pit was extremely \y
difficult to say, a judicial Court can take notice of a Government,
never authorised by the Government of the Country, in which
that Court sits ; . . .'.33
For a long time this judgment was accepted by later judges,
almost as the last word on the subject. However, doubts have
recently been raised as to the conclusiveness of this decision.
Firstly, the clarity of this judgment was considerably marred by
the judgments of the great Lord Chancellor in two subsequent
cases on the same subject. In Dolder v. Bank of England (1805),1
he said, ' Some perplexity arises from what we know and what we
can only know judicially. I cannot affect to be ignorant of the
fact that the Revolutions in Switzerland have not been recognised
by the Government of this country : but as a judge, I cannot take
notice of that.' 5 This remark is obviously inconsistent with the
earlier case, in which he doubted whether he could take notice of
an unrecognised government. Here, he doubted whether he
should take notice of the fact that the revolutions had not been
1 A century and a half ago, it was even doubted whether recognised Sove-
reigns had the right to sue (Lord Loughborough in Barclay v. Russell (1797),
3 Ves. Jun. 423, 430). This doubt has long since been dispelled (Hervey,
The Legal Effects of Recognition in International Law, 1928, pp. 112-5;
Fraenkel, The Juristic Status of Foreign States, Their Property and Their
Acts, 25 Col. L.R., 1925, p. 544, at p. 549).
2 (1804), 9 Ves. Jun. 347.
'Ibid., 348.
"(1805) 10 Ves. Jun. 352.
5 Ibid., 354. Cf. below, p. 240, n. 91.
135
136 Legal Effects of Recognition
recognised. In another case, Dolder v. Lord Huntingfield (1805),6
in answer to the question whether a court of justice may take
notice of a new State arising from revolution, Eldon L.C., merely
disposed of the question by saying that it was not easy to decide
on the meaning of ' revolution V No mention of City of Berne v.
Bank of England (1804) was made in either of these two cases.
It is difficult to see from them the authority of the earlier case.9
Secondly, the case was unreasoned and inadequately reported, and
it may be doubted whether it deserves the importance attached
to it by later decisions.'
Several later cases decided in courts of various countries have
often been cited, as affirming the principle laid down in City of
Berne v. Bank of England. But the circumstances attending those
cases did not really justify such a conclusion. Thus, in the
American case, The Hornet (1870),10 the French case, Matte et
Ross v. Societe des Forges etc. (1891),11 and the English case,
Republic of Chile v. Rothschild (1891),12 the de facto powers in
■question were still in the throes of civil war and did not attain
the stature of a general government. The denial of their right of
action can be fully explained by their lack of independence. After
the Congressionalist Party in Chile actually came into undisputed
possession of power in September, 1891, the English court
immediately granted the order requested by the agents of the Con-
gressionalist Party, which had been refused to them in the
Rothschild case.13 The decision of the Supreme Court of the
United States, in The Sapphire (1870) was an obvious departure
from the rule. It was held that a suit commenced by a deposed
government might be continued by the succeeding unrecognised
government in the name of the State.11 Another American court
even allowed an original suit to be brought by an unrecognised
4 (1805) 11 Ves. Jun. 283.
7 Ibid., 295.
s See Bushe-Fox, The Court of Chancery and Recognition, 1804-1831, 12
B.Y.I.L., 1931, p. 63, at p. 66.
9 Borchard, Unrecognised Governments in American Courts, 26 A.J.I.L., 1932,
p. 261, at p. 265.
10 (1870) 2 Abb. 35, Fed. Cases 6705, cited in Jaffe, op. cit., n. 21, p. 15 above,
p. 141.
11 18 J.D.I., 1891, p. 868, at pp. 881-2.
12 [1891] W.N. 138; The Times, July 4, 1891.
13 Republic of Chile v. City Bank (1891), 91 Law Times Magazine 325; Republic
of Chile v. Royal Mail Steam Packet, ibid., p. 341.
"(1870) 11 Wall. 164, 168.
Right of Unrecognised Powers to Sue 137
government on the ground that the State itself did not cease to be
an international person, the then existing condition of non-
recognition being simply an indication that there was no official
intercourse between the two States.15
(More recently, the enthusiasm for the rule of the City of Berne
case seems to have been revived in American courts, particularly <
in the cases involving Soviet Russia^ In The Rogdai (1920) an
action in rem brought by an agent ofthe Russian Socialist Federal
Soviet Republic for possession of a ship was dismissed on the
ground that the United States continued to recognise the defunct
provisional government of Russia.16 The same conclusion was
arrived at in The Penza and The Tobolsk (1921).17 In Republic
of China v. Merchants' Fire Assurance Corporation of New York
(1929), the action was dismissed in the lower court on the ground
that the Nationalist Government of China was not recognised and
had no capacity to sue. Pending appeal to the Circuit Court of
Appeals recognition was extended and the judgment was
reversed.18
In R.S.F.S.R. v.. Cibrario (1923), the Soviet Government
sought to compel an accounting by the defendant who was its
buying agent in the United States. The application was refused
on the ground that the Russian Socialist Federal Soviet Republic
was unrecognised.19
The judgment has been criticised on a number of grounds.
It has been suggested that, if the claim of the unrecognised
government is made in its own right, and not as successor to the
15 Government of Mexico v. Fernandez (1923), cited in Wright, Suits Brought
by Foreign States with Unrecognised Governments, 17 A.J.I.L., 1923, p. 742,
at p. 743 et seq.
16 (1920) 278 Fed. 294, Hudson, p. 91.
"(1921) 277 Fed. 91, Annual Digest, 1919-1921, Case No. 28.
18 (1929) 30 F. (2d) 278, Annual Digest, 1929-1930, Case No. 21.
18 (1923) 235 N.Y. 255, 139 N.E. 259, Hudson, p. 114. An attempt to cover
the same facts by bringing the action in the names of individuals also failed
{Preobazhenski v. Cibrario (1922) 192 N.Y. Supp. 275). The view was sus-
tained by the Court of Appeal of Liege in Despa v. U.R.S.S. (1931), cited in
Harvard Research, Competence of Courts, 26 A.J.I.L., 1932, Supplement,
p. 505; Annual Digest, 1931-1932, Case No. 28. A similar decision was given
by the Swedish Supreme Court, upholding the judgment of lower courts in
Soviet Government v. Ericsson (1921), Annual Digest, 1919-1922, Case
No. 30. In this case, at the time of the acquisition of the property which
was the object of the suit, Sweden was maintaining de facto relations with
the Soviet Government, and the acquisition was made with the permission
of the Swedish Government. But protection of the property was refused
on the ground of non-recognition.
138 Legal Effects of Recognition
previous government, recognition is immaterial.30 It has also
been argued, on equitable grounds, that the property of an un-
recognised government ought not to be open to ' free plunder '.21
The right of action, it is argued, is a corollary to the right of
property. If the right to acquire property is admitted, then
protection of the acquisition cannot be fairly denied.22
R.S.F.S.R. v. Cibrario has often been regarded as an affirma-
tion of the principle that, without recognition, an entity has no
juridical existence in the eyes of a foreign court. This conclusion
is entirely unwarranted. The lower court had, indeed, relied upon
the ground that an unrecognised government is juridically non-
existent.23 The New York Court of Appeals evidently chose to
base its judgment upon the grounds of comity24 and public
policy.25 An unrecognised government, not enjoying the comity
of the State of the forum, would naturally be barred from seeking
relief at its court. By the same token, not only unrecognised
powers, but also recognised powers which have severed diplomatic
relations, may be denied access to the courts.26 It thus appears
that the Cibrario case, far from affirming the contrary view, has
clearly shown that the denial of the right of a foreign power to
sue does not indicate that in the opinion of the court that power
has no juridical existence.27 In exceptional circumstances, there
are even cases like Government of Mexico v. Fernandez (1923),2S
in which a right of action was allowed to unrecognised powers.
At any rate, the cases reviewed do not conclusively show that the
principle of the City of Berne case has been strictly followed.
20Borchard, The Validity Abroad of Acts of the Russian Soviet Government,
31 Yale L.J., 1921-1922, p. 534; also Dickinson, Unrecognised Government
or State in English and American Law, 22 Mich. L.R., 1923-1924, pp. 29,
118, 122. This view has been abandoned by Borchard in a later article
(Unrecognised Governments in American Courts, 26 A.J.I.L., 1932, p. 261,
at p. 266).
"Dickinson, loc. cit., p. 123; Borchard, 26 A.J.I.L., 1932, p. 266.
22Doukas, The Non-Recognition Law of the United States, 35 Mich. L.R., 1937,
p. 1071, at p. 1083.
23 (1921) 191 N.Y. Supp. 543, 549, 550, cited in Hervey, op. cit., p. 117, n. 20.
"Hudson, p. 116.
25 Quoted in Dickinson, loc. cit., p. 123.
26 See Harvard Research, Competence of Courts, Article 3, 26 A.J.I.L., 1932,
Supplement, p. 503.
"Fraenkel, loc. cit., p. 551. The contrary view was, however, asserted by
Rudkins J., in Republic of China v. Merchants' Fire Ass. Corp. of N.Y.
((1929) 30 F. (2d) 278, 279, quoted in Dickinson, Recognition Cases, 1925-1930.
25 A.J.I.L., 1931, p. 214, at p. 219).
" See note 15 above.
Right of Unrecognised Powers to Sue 139
Rather, in the Cibrario case, incapacity to sue has been definitely
taken out of the narrow ground of non-recognition.
rWhile denying the unrecognised government the right to sue,
the American courts have often allowed the dispossessed, but
still recognised, government to exercise the rights of the State.N
Such a solution, although it is the logical consequence of the
doctrine of judicial self-limitation, would constitute an exception
to the logic of the retroactivity of recognition, which should relate
back to the commencement of ' the existence of the new regime \"
v
29 Below, p. 184. This practice received the support of Noel-Henry (Les
Gouvernements de Fait Devant le luge, Y)21, s. 115). See also U.S. v.
National City Bank of N.Y. (1950), 90 F., Supp. 448.
CHAPTER 9
IMMUNITY FROM LEGAL PROCESS
§ 1. Immunity from Suit
It is a settled principle of Anglo-American law that foreign
sovereigns cannot be sued without their consent.1 How far does
this rule apply to unrecognised powers? 2 The early cases do
not seem to have covered precisely this point. In the Santissima
Trinidad (1822),3 the principle was conceded that an insurgent
party recognised as a belligerent could not have its acts reviewed
in the courts of another State. If a belligerent community is
entitled to such immunity, it is a strong argument for according
similar rights to a general unrecognised power. In Underhill v.
Hernandez (1897),4 the United States Supreme Court expressly
recognised the immunity from suit of an unrecognised power.
In The Gagara (1919)/ the plaintiffs sought the issue of a writ
in rem against The Gagara. The ship was captured from the
Bolshevist Government of Russia and condemned as prize of war
by the Estonian National Council. The plaintiffs claimed to
be the true and lawful owners of the ship. The case involved
the twofold question of whether the Estonian National Council
enjoyed immunity of property, and whether it had power to
transfer title to property. Both questions were answered in the
affirmative by the court upon the basis of letters from the Foreign
1 Hervey, op. cit., n. 1, p. 135 above, p. 126; Fraenkel, loc. cit., n. 1, p. 135 above,
p. 552; Noel-Henry, op. cit., n. 29, p. 139 above, ss. 69-70, 135-6; Dickinson,
however, believes that the rule is not conclusive (loc. cit., n. 20, p. 138 above,
p. 124).
3 Dickinson thinks that there is a difference between unrecognised States and
unrecognised governments, but doubts whether courts could take practical
advantage of it (loc. cit., p. 125). This distinction was applied by the Court
of Appeal of Amsterdam (Weber v. U.S.S.R. (1942), Annual Digest, 1919-1942,
(Supplementary Volume, Case No. 74) and the Mixed Court of Alexandria
(The National Navigation Co. of Egypt v. Tavoularidis (1927), ibid., 1927-
1928, Case No. 110), in which it was held that the non-recognition of the
Russian Government did not affect the immunity of the Russian State.
s (1822) 7 Wheat. 283.
4 (1897) 168 U.S. 250, 252. The opinion on this point was, however, obiter,
because the act in question was validated by subsequent recognition.
5 [1919]P. 95.
140
Immunity from Legal Process 141
Office recognising the status of the Estonian National Council
as a foreign independent sovereign.
The basis for immunity in The Gagara was international
comity. This followed from the doctrine laid down in The
Parlement Beige (1880).6 Under this theory, an unrecognised
power, lacking comity with the State of the forum, would enjoy no
exemption. In a more recent American decision, Wulfsohn v.
R.S.F.S.R. (1923),7 this theory has been abandoned in favour of a
more realistic view. In that case, the question was whether an
action could be brought against the unrecognised Soviet Govern-
ment of Russia for the confiscation of a certain quantity of furs
in Russia. The Supreme Court of New York, relying upon the
principle of comity, denied immunity to the Soviet Government.
The decision was approved in the Appellate Division, but was
reversed in the Court of Appeals of New York. It was held that,
since the Russian Socialist Federal Soviet Republic was in
de facto exercise of the exclusive and absolute jurisdiction within
its own territory, its immunity from suit was the consequence of
its independence. In his judgment, Andrews J. laid down a new
principle for immunity:
' They [our courts] may not bring a foreign sovereign before
our bar, not because of comity, but because he has not submitted
himself to our laws. Without his consent he is not subject to them.
Concededly that is so as to a foreign Government that has
received recognition. . . . But, whether recognised or not, the evil
of such an attempt would be the same. ... In either case, to do
so would " vex the peace of nations ".' 8
This judgment has met with general approval,9 and the
• (1880) 5 P.D. 197, 207.
7 (1922) 192 N.Y. Supp. 282, 195 N.Y. Supp. 472, (1923) 234 N.Y. 372, Hudson,
p. 112, Green, International Law Through the Cases, 1951, No,, 35.
8234 N.Y. 372, 375-376. Italics added. Motion for reargumentr -denied ((1923)
235 N.Y. 579). Writ of error dismissed by U.S. Sup. Ct. ((1924) 266 U.S. 580).
• Dickinson, he. cit., p. 128; Borchard, Unrecognised Governments in American
Courts, 26 A.J.I.L., 1932, p. 261, at p. 265; Hervey, op. cit., p. 131; Harvard
Research, Competence of Courts, Article 7, 26 A.J.I. L., 1912, Supplement,
p. 527. Some writers have criticised the judgment on the ground that the
refusal of immunity will strengthen the hands of the government in foreign
relations (Noel-Henry, op. cit., s. 119; Hayes, Private Claims Against Foreign
Sovereigns, 38 H.L.R., 1925, p. 599, at pp. 619-20). For criticism of this
view see Jaffe, op. cit., n. 21, p. 15 above, at pp. 157-8.
142 Legal Effects of Recognition
principle found forceful affirmation in Nankivel v. Omsk All-
Russian Government (1923).10
§ 2. Immunity of Property
The immunity of the property of foreign powers from attachment,
seizure, arrest or other legal processes is based upon the same
considerations as the immunity from suit. But it is quite possible
to refuse immunity of property, if the Court acts under the comity
theory. The question was raised in The Annette: The Dora
(1919).11 Here the plaintiff issued writs in rem claiming possession
of vessels which had been requisitioned or sequestered by the
Provisional Government of Northern Russia, and hired by them
to a private firm for the purpose of trade. The Provisional
Government moved to set aside the writs on the ground of
immunity. The motion was denied on three grounds : that the
Provisional Government was not recognised, that the ships were
not in actual possession of that Government and that they were
not being used for public purposes. The decision in the case
was not based upon non-recognition alone. It is extremely doubt-
ful whether it could be maintained that, but for non-recognition,
immunity would have been accorded.
In the American case Banque de France v. Equitable Trust
Co. (1929),12 the decision was a straightforward affirmation of
immunity of property belonging to unrecognised powers. Here,
an action to recover a quantity of gold belonging to the unrecog-
nised Union of Soviet Socialist Republics was dismissed upon the
authority of Wulfsohn v. R.S.F.S.R. (1923).
In the English case The Arantzazu Mendi (1939),13 immunity
was granted to a ship in the possession of the Nationalist Govern-
ment of Spain. At the time of the litigation the Nationalist
Government was not yet in sole possession of the Spanish terri-
tory. The British Government had recognised it as a government
exercising ' de facto administrative control over the larger portion
of Spain '. Although there was some sort of ' recognition ', it
10 (1923) 237 N.Y. 150, 142 N.E. 569, Annual Digest, 1923-1924, Case No. 70.
11 [1919] P. 105.
12 (1929) 33 F (2d) 202, Annual Digest, 1929-1930, Case No. 22. See also the
Dutch and Egyptian cases above, p. 140, n. 2.
13 [1939] A.C. 256. See below, p. 320 et seq.
Immunity from Legal Process 143
does not seem that the recognition amounted to a recognition as
the government of a State.11 The House of Lords, nevertheless,
proceeded upon the proposition that the Nationalist Government
was a ' government ' which had been ' recognised \
Although the decision itself does not clearly support the view
that property Of unrecognised powers should be immune, Lord
Atkin, delivering the opinion of the House, made it plain that the
basis of immunity is not comity, but the fact of independence.
He said :
'All the reasons for immunity which are the basis of the
doctrine in international law as incorporated into our law exist.
There is the same necessity for reciprocal rights of immunity, the
same feeling of injured pride if jurisdiction is sought to be
exercised, the same risk of belligerent action if government
property is seized or injured.' 1S
The decision of the United States Supreme Court in The Gul
Djemal (1924),16 may perhaps be cited to contradict this view. A
public ship belonging to the Turkish Government, which had
severed diplomatic relations with the United States, was denied
immunity. This may be urged as a proof that comity is essential
for the enjoyment of immunity. Upon examination, however,
that does not seem to be the case. The point which seemed to be
the primary consideration of the court is that the ship was engaged
in ordinary commerce. Moreover, there was no competent
person to make the claim for immunity, [although the Spanish
Ambassador filed a suggestion with the Court stating that he
had charge of Turkish interests in the United States. This sug-
gestion was supplemented by a letter from the Department of
State to the Ambassador recognising this state of affairs, but the
Court held that the suggestion had to come from the Department
of State itself "].. The judgment would have been the same even
if the existence of comity were not questioned. It appears, there-
fore, that there is nothing in The Gul Djemal which is inconsistent
with the principle of the Wulfsohn case, [and it should be
remembered that in the Gul Djemal there was no question of
11 See below, p. 293.
15 [1939] A.C. 265.
16 (1924) 264 U.S. 90.
17 [Hackworth, vol. 2, p. 442, et seq.]
144 Legal Effects of Recognition
non-recognition, but only of the severance of diplomatic
relations] .
The granting of immunity to a foreign power on the ground
of its independence seems to be the only reasonable approach
to the problem. If a foreign power is really independent, the
attempt to assert jurisdiction over it would be ineffective. If it be
assumed that unrecognised powers have no juridical existence,
then there is no party over whom the jurisdiction can be
exercised. If, on the other hand, it be assumed that powers, even
unrecognised, may have juridical existence, its submission to the
jurisdiction would have to be subject to the same principles
applicable to recognised powers. It may be admitted that there
is some force in the suggestion that jurisdiction may be assumed
where the res is within the jurisdiction.18 But that suggestion, if
correct, would be equally applicable to the assertion of jurisdiction
over recognised powers.
From the above discussion it seems that the relation between
recognition and immunity is not one of cause and effect. Many
States have accorded jurisdictional immunity to non-sovereign
political subdivisions.19 On the other hand, barring comity, there
is nothing to prevent jurisdiction being assumed over recognised
foreign sovereigns provided it can be made effective, as, for
instance, in the case where the res is within the jurisdiction. The
right of immunity is inherent, not in the recognition, but in the
fact of independence.
"Tennant, Recognition Cases in American Courts, 1923-1930, 29 Mich. L.R.
1930-1931, p. 708, at p. 714.
'" Below, p. 253, n. 60.
CHAPTER 10
•
VALIDITY OF LAWS AND ACTS:
PUBLIC RIGHTS
C*The question of the binding force of acts of an unrecognised State
gives rise to little controversy. It is a procedural necessity that
in order to claim rights under these acts a foreign State must first
have official relations with the unrecognised State. The very act
of official intercourse would itself constitute recognition, which
would retroactively validate the acts in question?^
[The unrecognised government of a recognised State presents V
a different problem. If the unrecognised government acts in
the name of the State, enters into contracts, commits torts, grants
concessions, relinquishes rights and accepts obligations, how far
would the subsequently recognised government be obliged to
accept these acts as validly binding the Stated The question is
answered with great clarity byl*rofessor\Borchard J who says :
(\A general government de facto, having completely taken the
place of the regularly constituted authorities in the State, binds the V
nation. So far. as its international obligations are concerned, it
represents the State.'^)
Indeed, it is almost superfluous to say that a general de facto
government of a State is none other than the government of that
State.
' It may also be stated, with great confidence ', declared
Commissioner Findlay in an arbitration between the United
States and Venezuela, ' that a government de facto, when once
invested with the powers which are necessary to give it that
character, can bind the State to the same extent and with the same
legal effect as what is styled a government de jure. Indeed, as
Austin has pointed out, every government properly so called, is a
government de facto.' 2
1 Borchard, n. 61, p. 129 above, p. 206. [This statement was expressly adopted
by Taft, arbitrator, in the Tinoco Arbitration (1923), 1 Reports of International
Arbitral Awards, p. 369, 378.]
1 Day and Garrison (U.S.) v. Venezuela (1889), U.S. — Ven. Claims Commis-
sion, Moore, International Arbitrations, vol. IV, p. 3548, at p. 3553.
145
146 Legal Effects of Recognition
Similar views have been expressed by Wheaton,3 Moore * and
Rivier,5 who base their arguments on the continuity of the
existence and responsibility of the State. It is generally in accord
with the practice maintained by the majority of States. Thus,
France,6 the Kingdom of the. Two Sicilies 7 and Spain " admitted
liability for the acts of their Napoleonic rulers. Debts paid by
the Prince of Hesse Cassel to Napoleon were held by an inter-
national tribunal to be a valid discharge.9 In 1877, an attempt
by the Haitian Government to nullify the acts of the former de
facto government by means of legislation was vigorously resisted
by the United States.10 Contracts entered into by de facto
governments have been held to be internationally binding.11 In
Miller (U.S.) v. Mexico (1871) an international arbitral tribunal
awarded compensation for damages suffered as a result of a forced
loan by a de facto government.12 In the Tinoco Arbitration (1923),
Taft C.J., arbitrator, declared that, notwithstanding non-recogni-
tion by Great Britain, the Tinoco Government was ' an actual
sovereign government ' of Costa Rica, which was responsible for
its acts.13
Although it may be stated as a general principle that acts of a
general de facto government are internationally binding on the
State, it may still be questionable whether a person or a group of
"Dana's Wheaton, ss. 31, 32.
4 Moore, Digest, vol. I, p. 249.
5 Rivier, op. cit., n. 23, p. 15 above, vol. I, p. 62.
6 Conventions of 1803 and 1831 between France and the United States (Moore,
International Arbitrations, vol. 5, pp. 4399, 4447). For the American view,
se« Moore, Digest, vol. I, pp. 249-50. For French indemnities to other
Powers, see Moore, International Arbitrations, vol. 5, p. 4862.
7 Ibid., p. 4575 et seq.
" Ibid., p. 4572 et seq. Spain and the Two Sicilies accepted liability in spite
of the fact that the Napoleonic regimes were in reality foreign invaders.
See below, p. 299, n. 49.
'Decision of the Holstein University of Kiel. See Phillimore, op. cit., n. 21,
p. 15 above, vol. Ill, pp. 841-849. The French National Assembly, however,
refused to regard itself as competent to discharge a debt (Moore, Digest,
vol. I, p. 120).
10 Moore, ibid., p. 250.
11 Republic of Peru v. Peruvian Guano Co. (1887), 36 Ch.D. 489; same v.
Dreyfus Bros. & Co. (1888), 38 Ch.D. 348. In these cases the ' de facto '
government in question had been recognised by the government of the
forum. The headnote in the latter case, however, states : ' sernble, that
even in the case of a contract by a foreigner with a rebel State which has
not been internationally recognised, property acquired under it cannot be
recovered from him in violation of the contract'.
12 Moore, International Arbitrations, vol. 3, p. 2974.
13 1 Reports of International Arbitral Awards, p. 369, at p. 380.
Public Rights 147
persons purporting to act as government is really in a position to
represent the authority in power and whether his or its acts are
in a true sense the expression of the will of the State. Under
normal circumstances, both the capacity to represent the State
and the procedure by which the will of the State is expressed are
provided in the internal public law of that State. An act can be
regarded as an act of the State only when the conditions laid down
in that internal public law are complied with. On the other hand,
Csince the term ' de facto government ' is used to mean a govern-
ment which is set up in defiance of the constitutional provisions
of the State, to require that its acts, in order to represent the will
of the State, must be in conformity with the constitutional
provisions is to say that a de facto government can under no
circumstance engage the responsibility of the State.14 Many
States have attempted to repudiate the acts of their de facto
governments on this ground.'Olt has been suggested by a recent
writer thatfthe international transaction thus entered into by a
de facto government should not be invalidated on the ground of
non-compliance with the internal public law of the State, because
that internal public law which pre-existed the establishment of
the de facto government had been by that event destroyed or held
in abeyance.16 If there is an internal public law governing the
representative capacity of State agents it must be one based upon
the acceptance of the new regime^ llhis argument can apply, of
course, only to those cases in which the de facto government has
expressly declared itself to be completely broken away from the
pre-existing legal regime. Unless this is so, the mere departure
from the established public law does not make an act one of a
de facto government. It would be nothing more than an act of an
individual in the government acting in excess of his authority]]
The best evidence of the de facto existence of a government
is, no doubt, provided by its recognition by other States. But
even so, it may not be conclusive, at least for an international
tribunal. In the Cuculla Arbitration (1876) between the
United States and Mexico, it was held that the recognition by the
United States Minister to Mexico was not sufficient evidence of a
11 See comments of Taft C.J. in Tinoco Arbitration, 1 Reports of International
Arbitral Awards, p. 369, at p. 381.
15 See Jones, Full Powers and Ratification, 1946, Ch. VI.
16 Ibid., p. 155, and Taft C.J., loc. cit.
V
V
148 Legal Effects of Recognition
de facto government. ' Recognition ', declared Commissioner
Wadsworth, ' is based upon pre-existing fact; does not create the
fact. If this does not exist, the recognition is falsified '." This
view was similarly held in the McKenny case (1876).18 In
both cases, Mexico was consequently absolved from the respon-
sibility for the acts of the alleged de facto governments.19
These cases have shown that /recognition neither proves nor
v disproves conclusively the de facto existence of a government, and
therefore does not affect the binding force of the acts of such a
government!/ Let us now consider the converse case of the effect
of non-recognition upon such acts. In the Tinoco case (1923), it
was argued on behalf of Costa Rica that Great Britain, not having
recognised the Tinoco Government, was estopped from claiming
the responsibility of Costa Rica for the acts of that government.
The argument was rejected by Taft C.J., sole arbitrator, who
found that the Tinoco Government was at the material time ' in
actual and peaceable administration without resistance or conflict
or contest by anyone '.20 Recognition, he said, is weighty
evidence of existence. But when recognition is determined by
inquiry, ' not into its de facto sovereignty and complete govern-
mental control, but into its illegitimacy or irregularity of origin,
their non-recognition loses something of evidential weight on the
issue with which those applying the rules of international
law are concerned '.21 Costa Rica was therefore bound by the
acts of the Tinoco Government, notwithstanding its non-
recognition by Great Britain.
In negotiating for the settlement of claims between the United
States and Mexico, it was argued on behalf of the Mexican
Government that Huerta had never constituted even a de facto
government.22 But considering the extent, the paramountcy and
the duration of his control in Mexico, the argument does not seem
to be justified. Many States, including the United States, had
refused to recognise this government. President Wilson declared
17 Cuculla (U.S.) v. Mexico, Moore, International Arbitrations, vol. 3, p. 2873,
at pp. 2876-7.
18 McKenny (U.S.) v. Mexico, ibid., p. 2883.
19 See also Georges Pinson Claim (1928) decided by the Franco-Mexican Mixed
Claims Commission, 1928, 39 R.G.D.I.P., 1932, p. 230; Green, op. cit.,
n. 7, p. 141 above, No. 183.
20 1 Reports of International Arbitral Awards, p. 369, at p. 379.
51 Ibid., p. 381.
"Feller, Mexican Claims Commissions, 1923-1934, 1935, s. 150.
Public Rights 149
that ' he will not recognise as legal or binding anything done by
Huerta since he became dictator '.23 Does this declaration have
the effect of liberating Mexico from the ordinary liability for acts
of de facto governments so far as the United States and its citizens
are concerned? It is believed that, following the reasoning of
the Tinoco arbitration, the answer should be in the negative. It
cannot be supposed that should the Huerta Government have
declared war on the United States, the United States Government
could have considered itself not at war with the State of Mexico.21
As regards the competence of de facto governments to perform
ordinary functions of government, it is believed that whatever is
within the competence of a local de facto government must be
presumed to be within the competence of a general de facto
government. Thus, the collection of duties, the operation of
public services, and other transactions of routine business by the
de facto government must be considered binding upon the State.25
23 Borchard, op. cit., p. 211, n. 1.
24 An English Court (K.B.D.) has held that military operations of the British
forces against Bolshevist Armies in Russia did not constitute war with
Russia (Eastern Carrying Ins. Co. v. Nat. Benefit Life and Property Ins. Co.
(1919), 35 T.L.R. 292, 294). Note, however, that the Bolshevists were not
then in sole control of the country, and had not been recognised by the British
Government, while there had been no executive statement concerning the
existence of war.
25 Below, pp. 315, 324 et seq. See also Hopkins Claim (1926), Opinions of
Commissioners, 1927, p. 42; Green, op. cit., No. 144.
CHAPTER 11
VALIDITY OF LAWS AND ACTS:
PRIVATE RIGHTS
Since the fact of the existence of States or governments is not
dependent upon its acknowledgment by other States, individuals
living under an unrecognised regime cannot escape the con-
sequences of its existence. In their daily course of life legal
relations have grown up among them. It is impossible for foreign
States to pretend that a State of anarchy has existed within that
territory, where, in fact, an orderly process of life has been
carried on. It is this aspect of the question which has thrust itself
with the greatest force before judges and lawyers. While it might
at least be arguable whether the refusal of the right to sue or of
the right to immunity, which is immediately connected with the
claim to political sovereignty, may not be justified by considera-
tions of self-protection L and the attainment of political purposes,
such a justification is certainly not available in a case in which
private rights alone are concerned.2 The infliction of pain on
individuals serves no purpose, not even a political one. For this
reason, the call for de factoism in recognition is most pronounced
and most urgent in cases where the principal sufferer is the
individual.
§ 1. Personal Status of Individuals
The question of nationality often arises as the preliminary
question for the decision of rights. Does the possession of
nationality depend upon recognition? In Doe d. Thomas v.
Acklam (1824) " the Court of King's Bench held that a British
1 ' More than once during the last 70 years our relations with one or another
existing but unrecognised government have been of so critical a character
that to permit it to recover in our courts funds which might strengthen it
or which might even be used against our interests would be unwise '
(R.S.F.S.R. v. Cibrario, 235 N.Y. (1923) 255, 262).
2 In these latter cases, the question of political sovereignty need not arise
at all (Note, The Effect in American Courts of Acts within the Territory of
an Unrecognised Government, 38 H.L.R., 1924-1925, p. 816).
* (1824) 2 B. & C. 779. A similar decision was given by the Supreme Court
of the United States, cited, without name, ibid., p. 798.
150
Private Rights 151
subject acquired United States nationality in consequence of the
Treaty of 1783. In Murray v. Parkes (1942),4 it was held that the
secession of Eire not being recognised, the nationality of a British
subject was unchanged.
In the United States 5 several cases arose in connexion with
the nationality of individuals living in territories which formed
parts of the new States emerging from the World War of 1914-
1918. A Minnesota Court held that a person residing in that part
of Austro-Hungarian territory which was incorporated into
Yugoslavia ceased to be an alien enemy from the date of the
recognition of Yugoslavia by the United States.6 Upon similar
facts, courts in Pennsylvania and Indiana have, however, held
that recognition did not settle the question of the enemy status
of persons residing in these territories.7 A case more directly in
point was decided by a French court which held that, the indepen-
dence of the Ukraine not being recognised by France, the Franco-
Russian Treaty of 1896 should be applied to a native of the
Ukraine.8
Another group of cases arose out of the question whether
certification of personal status by officials of unrecognised powers
should be considered as valid. In Golovitschiner v. Dori (1923),'
an Egyptian court held that, since Egypt did not recognise the
existing government of Russia, the certification of nationality by
the former Russian consul (whose government apparently no
longer existed) might be entered as evidence, which might be
rebuttable. A converse case was decided by a New York court.
This time it was a certificate authenticated by an official of the
unrecognised Soviet Government which was admitted in evidence.
The court said:
1 [1942] 2 K.B. 123; above, p. 87. [Now, however, see British Nationality Act,
1948 (11 & 12 Geo. 6, Ch. 56), s. 2, and Ireland Act, 1949 (12 & 13 Geo. 6,
Ch. 41), s. 3.]
sIn an early case, The Nereide (1815), 9 Cranch 388, 413, it was impliedly
held that a native of Buenos Aires, then in rebellion, was a Spanish subject.
• Kolundjija v. Hanna Ore Mining Co. (1923), 155 Minn. 176, Dickinson, loc.
cit., n. 19, p. 101 above, p. 266.
7 Garvin v. Diamond Coal and Coke Co. (1923), 278 Pa. 469; Inland Steel Co.
v. Jelenovic (1926), 84 Ind. App. 373; Dickinson, ibid., p. 267.
• Tsourkanienko v. Battier, Trib. Corr. Arras (1923), 50 J.D.I., 1923, p. 833.
• Civil Tribunal of Cairo (1923), Annual Digest, 1923-1924, Case No. 24. See
also Gross v. Gretchenko, Mixed Commercial Tribunal of Alexandria (1924),
ibid., Case No. 23.
152 Legal Effects of Recognition
' It has been judicially determined that there does in fact exist
a government, sovereign within its own territory, in Russia. . . .
Prior rights and interests have been passed on judicially, during
the existence of the present " Soviet Regime ", and our courts
have held to the principle that our State Department cannot
"determine how -far the private rights and obligations of indivi-
duals are affected by acts of a body not sovereign, or with which
our government will have no dealings. That question does not
concern our foreign relations. It is not a political question, but a
judicial question ".' I0
On October 28, 1921, and October 29, 1924, the Soviet
Government issued decrees purporting to deprive Russian
emigres of certain descriptions of their Russian nationality.11
Prior to its recognition of the Soviet Government, the French
Government ignored these decrees and continued to treat the
emigres as Russian nationals in accordance with the old Russian
laws.12 Since the relation between a national and his State is one
of allegiance and protection, it is difficult to see the purpose of
pretending the existence of a nationality where neither allegiance
nor protection could be claimed or was admitted.12"
§ 2. Status of Corporations
As the result of the Soviet decrees nationalising Russian insurance
and banking corporations, the status of such corporations became
a subject of contention in foreign courts. In American courts
the question received the most careful consideration.
The first of these cases is Sokoloff v. National Bank of New
10 Werenjchik v. Ulen Contracting Corporation (1930), 229 App. Div. 36, 37,
240 N.Y. Supp. 619, 620; Annual Digest, 1929-1930, Case No. 19. See
Dickinson, loc. cit., n. 27, p. 138 above, p. 234, and Tennant, loc. cit., n. 18,
p. 144 above, pp. 733-4. A contrary view was sustained in an earlier case,
Pelzer v. United Dredging Co. ((1922) 200 App. Div. 646, 193 N.Y. Supp.
676). The status of an administratrix appointed by a Mexican Court was
denied recognition, because the Mexican Government was not recognised
by the United States. The court did not treat the question as one affecting
private rights alone, but considered the position of an administratrix as an
official of the Mexican Court. See criticisms in Dickinson, loc. cit., n. 20,
p. 138 above, p. 31; Fraenkel, loc. cit., n. 1, p. 135 above, p. 567.
11 Prudhomme, La Reconnaissance en France du Gouvernement des Soviets et
ses Consequences Juridiques, 52 J.D.I., 1925, p. 318 at pp. 323-4.
" Policy approved by Noel-Henry (op. cit., n. 29, p. 139 above, s. 122).
12a Cf. Lauterpacht, The Nationality of Denationalised Persons, 1 Jewish Year-
book of International Law, 1948, p. 164.
Private Rights 153
York (1924).13 The plaintiff deposited with the defendant in New
York City, in June, 1917, a sum of money upon the latter's
promise to open an account in his Petrograd branch. After the
Soviet revolution, the plaintiff's cheques were dishonoured.
The plaintiff sued- in New York for the balance. The defendant
pleaded that, by virtue of the Soviet decrees, the assets and
liabilities of the defendant were taken over by the Russian State
Bank. It was held by the New York Court of Appeals that the
defendant being a corporation formed under United States laws,
its corporate life could not be terminated except by United States
laws. The decisive question was whether the confiscation of
assets by Soviet decrees constituted a valid excuse for default and
discharge of the obligation. The answer was that the obligation
was a debt, not a bailment, and the plaintiff was entitled to look
for satisfaction in other assets of the defendant corporation.
The case did not seem to require any examination into the
validity and effect of the Soviet decrees. Justice Cardozo,
however, thought it necessary to address himself to this point. In
principle, he declared, an unrecognised government is no govern-
ment at all; in practice, subject to ' self-imposed limitations of
common sense and fairness '," effect should at times be given to
ordinances of unrecognised governments notoriously in de facto
existence. Such a de facto government, he said, * may gain for
its acts and decrees a. validity quasi-governmental, if violence to
fundamental principles of justice or to our own public policy
might otherwise be done '.15 The defendant's case, however, was
found to be not within such an exception.
It is thought that this opinion, though obiter, provided a point
of departure for a more realistic approach to the problem.16
In James v. Second Russian Insurance Co. (1924),17 the
defendant, a Russian company, pleaded, among other things, that
its corporate existence had been terminated by the Soviet decrees.
13 (1924) 239 N.Y. 158, 145 N.E. 917, Cases, p. 157. Comments in Dickinson,
loc. cit., n. 19, p. 101 above, pp. 269-70; Tennant, loc. cit., n. 18, p. 144 above,
pp. 724-7.
14 Cases, p. 159.
15 Ibid., p. 160.
16 Dickinson, lex:, cit., n. 27, p. 138 above, p. 237. See criticism in 38 H.L.R.,
1924-1925, p. 822.
17 (1924) 203 N.Y. Supp. 232, 205 N.Y. Supp. 472, (1925) 239 N.Y. 248; 146
N.E. 369, Hudson, p. 124. Comments in Dickinson, loc. cit., n. 13 above,
pp. 270-2; Tennant, loc. cit., pp. 727-8; note in 25 Col. L.R., 1925, pp. 668-9.
154 Legal Effects of Recognition
While following the Sokoloff judgment that the recognition of the
Soviet decrees was not required by public policy, the New York
Court of Appeals proceeded to show that such recognition or non-
recognition really made no difference, so long as the defendant
corporation had vitality sufficient to answer a complaint.18
In this case, again, the court did not base its decision squarely
upon the question of the validity of the Soviet decrees. It
succeeded, by skilful manoeuvres, in basing its decision upon a
factor which is irrelevant to the question of recognition.18 We
find this technique again applied, though to a less extent, in
Russian Reinsurance Co. v. Stoddard (1925).20
In this case, the plaintiff, a Russian corporation, brought
action for the recovery of certain funds. The plaintiff corpora-
tion had been driven out of Russia during the revolution, and the.
exiled directors met in Paris, purporting to act in their former
capacity. The defendant argued that the plaintiff had no
existence, that the claimants no longer represented the corpora-
tion, and that, in any case, the plaintiff's title was not proved to
the exclusion of others.
In the New York Court of Appeals, Justice Lehman, while
maintaining that an unrecognised government is no government,
said:
' In the present case the primary question presented is not
whether the courts of this country will give effect to such decrees
but is rather whether within Russia, or elsewhere outside of the
United States, they have actually attained such effect as to alter
the rights and obligations of the parties in a manner we may not
in justice disregard, regardless of whether or not they emanate
from a lawfully-established authority.' 21
It was found as a fact that the Russian Socialist Federal Soviet
Republic actually governed in Russia. Such a fact, observed
Justice Lehman,
18 As tt> a second defence, that the liabilities of the defendant had been
extinguished by the decrees, it was held that the Soviet decrees could not
affect assets abroad (Hudson, p. 127; [see also A IS Merilaid & Co. v. Chase
Nat. Bank of City of N.Y. (1947), 71 N.Y.S. (2d) 377].
19 This is likened to a judicial technique in deferring constitutional questions
(Note in 38 H.L.R., 1924-1925, pp. 822-3).
20 (1925) 240 N.Y. 149, 147 N.E. 703, Cases, p. 162. Comments in Dickinson,
loc. cit., n. 13, p. 753; loc. cit., n. 16, pp. 230-1; Tennant, loc. cit., pp. 729-30;
Notes in H.L.R. XXXIX, 127.
21 Cases, p. 164.
Private Rights 155
' must profoundly affect all the acts and duties, all the relations
of those who live within the territory over which the new
establishment exercises rule. Its rule may be without lawful
foundations; but lawful or unlawful, its existence is a fact and
that fact cannot be destroyed by juridical concepts. ... In such
case we deal with result rather than cause. We do not pass upon
what such an unrecognised governmental authority may do, or
upon the right or wrong of what it has done; we consider the
effect upon others of that which has been done, primarily from the
point of view of fact rather than of theory.' 22
The court gave judgment for the defendant, not only upon
the ground of the ' inverse of the exception of public policy ' as
formulated in the Sokoloff case, but also upon the grounds of the
danger of double recovery and the inadequate safeguard to the
interests of shareholders. It is probable that the danger of double
recovery was actually the principal consideration of the court.
This was evidenced by the fact that in a similar case where there
was no danger of double recovery, the court reached a contrary
conclusion, upholding the continued existence of the nationalised
Russian corporation.23
In Joint Stock Co. of Volgakama Oil and Chemical Factory ,
v. National City Bank (1925),24 since the deposit of money was
made subsequent to the nationalisation decree, it was held that
the defendant was estopped from contending the non-existence
of the plaintiff's corporate entity. However, the court did not
disregard the Soviet decrees altogether, but proceeded to examine
the later Soviet decrees on their merits and held that there was
nothing in them that purported to terminate the plaintiff's
corporate existence.
In James & Co. v. Rossia Insurance Co. (1928), the continued
existence of the Russian Corporation was upheld on the ground
of equity.25 The effect of the Soviet laws was, however, again
denied in Petrogradsky M.K. Bank v. National City Bank (1930).2*
22 Cases, pp. 165-6; 240 N.Y. (1925) 149, 158.
23 First Russian Insurance Co. v. Beha (1925), 240 N.Y. 601, see Dickinson,
loc. tit., n. 16, p. 231; Tennant, loc. cit., p. 730.
21 (1925) 240 N.Y. 368, Tennant, ibid., p. 730; Dickinson, loc. cit., p. 230.
25 (1928) 247 N.Y. 262, Dickinson, ibid., pp. 231-2.
26 (1930) 253 N.Y. 23, 170 N.E. 479, Annual Digest, 1929-1930, Case No. 20.
Comments in Dickinson, loc. cit.,. pp. 232-3; Tennant, loc. cit., pp. 731-4.
Rehearing denied (254 N.Y. 563); certiorari denied by U.S. Sup. Ct. (282
U.S. 878).
156 Legal Effects of Recognition
The circumstances in this case were similar to those in the
Stoddard case. The decision of the lower court based upon the
authority of the Stoddard case was, however, reversed by the
Court of Appeals of New York. It was held that the corporate
existence of the plaintiff was unaffected by the Soviet laws, which
were mere ' exhibitions of power '. Although there was no harm
in upholding everyday transactions of business, American Courts,
it was held, must not assist in divesting the plaintiff of title to any
asset which would ultimately be transferred to the unrecognised
government. For this reason, the dissolution of the corporation
was invalid and the old Imperial Russian law had to be regarded
as governing the juridical status of the company. The authority
of the former directors was regarded as sufficient to permit them
to sue in the name of the corporation.
The Petrogradsky judgment was brought into juxtaposition
with the Stoddard judgment in People ex rel. Beha, Northern
Insurance Co. (1930).27 The New York Superintendent of Insur-
ance applied for an order to take possession of the property and
conserve the assets of Russian insurance companies in liquidation.
The Superintendent relied upon the Stoddard case, the company
directors upon the Petrogradsky case. The order was granted by
the New York Supreme Court but was reversed by the Court of
Appeals on the ground that the Russian directors must work out
for themselves their problems of internal management.28
The cases reviewed above illustrate the unwillingness Of
American courts to give effect to Soviet decrees purporting to
terminate the corporate existence of Russian companies. The
principles of the Sokoloff and Stoddard judgments were given
very little encouragement, and have been restricted to very narrow
limits. It was not until the pronouncement of the decision in
Salimoff and Co. v. Standard Oil Co. of New York (1933),"9 that
a real change of attitude toward Soviet decrees took place. So
far as concerned the effect of the laws of unrecognised powers
upon the existence of their corporations, the principle of the
Salimoff decision was followed in subsequent cases of non-
recognition. Thus, in The Denny (1941),30 two Lithuanian
"(1930) 243 N.Y.S. 35, 229 App. Div. 637, cited in Dickinson, loc tit
pp. 233-4; Tennant, loc. cit., p. 733, n. 86.
28 See Jaffe, op. cit., n. 21, p. 15 above, p. 188.
29 262 N.Y. 220, 186 N.E. 679, below, p. 159.
30 (1941) 40 F. Supp. 92; 127 F. (2d) 404, Annual Digest, 1941-1942, Case No. 18.
Private Rights 157
Corporations brought a possessory libel against a Lithuanian ship.
The United States Government had refused to recognise both the
Lithuanian Soviet Socialist Republic and its absorption into the
Union of Soviet Socialist Republics in 1940. The District Court
of New Jersey held that the libellants, having been dissolved by
the laws of the Lithuanian Soviet Socialist Republic, had lost
their juridical existence and had no right to sue. The powers
of attorney given by the libellants were consequently void. In
the Circuit Court of Appeals, Third Circuit, the/judgment was
reversed. The court, however, not only did riot overrule the
holding of the lower court that the Soviet nationalisation decree
should be upheld, but went further and declared that both the
reorganisation of the libellant corporations and the conferment
of the powers of attorney under the Soviet laws were valid. Citing
the Salimoff decision, the court said :
' We may not ignore the fact that the Socialist Soviet govern-
ment did actually exercise governmental authority in Lithuania at
the time the decrees in question were made and the powers of
attorney were given, but must treat its acts within its own territory
as valid and binding upon its nationals domiciled there.' 31
[In A IS Merilaid and Co. v. Chase National Bank of City of
New York (1947),32 the Supreme Court of New York County had
to consider the effect of a nationalisation decree by the Estonian
Soviet Socialist Republic, after the absorption of Estonia into the
Soviet Union. In its judgment the Court pointed out :
' The Government of the United States does not recognise the
incorporation of the Republic of Estonia into the Union of Soviet
Socialist Republics, and it has refused to recognise the Estonian
Soviet Socialist Republic. The legality of the nationalisation laws
and decrees or of any of the acts of the regime now functioning
in Estonia is not recognised by the Government of the United
States.']"
§ 3. Property
(There are two aspects of the question of the validity of acts of
unrecognised powers with regard to property: the validity of
the transfer of titles to property between private individuals
31 127 F. (2d) 404, 410.
32 [(1947) 71 N.Y.S. (2d) 377.]
158 Legal Effects of Recognition
under the sanction of the laws of unrecognised powers, and the
transfer of title by means of confiscatory laws. The latter usually
meets with greater opposition in foreign courts) '
In two early English cases the legislation of the Revolting
American States was regarded as the "law of independent States.
In Wright v. Nutt (1788), confiscation of property by a Georgian
act was considered as a good defence in a suit brought in England
by an American creditor.33 In Folliott v. Ogden (1789), a con-
fiscatory act of the State of New Jersey was treated as a law of
an independent State, although, owing to its penal character, it
did not constitute a bar to action.34 These two cases being
decided after the conclusion of the Treaty of 1783, it is not clear
whether the decision was based upon the retroactive effect of the
recognition.35
In Ogden v. Folliott (1790), although the judgment of Folliott
v. Ogden was affirmed, the Court of King's Bench, however,
expressly rejected the view that the confiscation by New Jersey
was valid, saying that the act was ' illegal at that time, whatever
confirmation it might afterwards receive there by the subsequent
treaty of peace '.30 The refusal to regard acts of unrecognised
governments as law, even after recognition, was again confirmed
in Dudley v. Folliott (1790).37 It was held that the seizure by the
State of New Jersey was an unlawful act, not covered by the
covenant in a conveyance of lands which guaranteed against
lawful interruption. In Barclay v. Russell (1797),38 confiscation
by the State of Maryland was held to have no effect on property
in England. The judgment, however, seemed to be based more
upon the territorial character of the act, than the fact of non-
recognition.
In Dolder v. Lord Huntingffeld (1805),39 the Helvetic Republic
sought to recover a certain fund « belonging to former Swiss
Cantons but declared national property by an act of the Republic.
The defendant's objection that the Republic had not been recog-
nised was overruled by the court.
33 (1788) 1 H.B1. 136, 149.
34 (1789) 1 H.B1. 123, 135
35 Below, p. 172.
36 (1790) 3 Term Rep. 726, 732. Affirmed by the High Ct. of Parliament
(1792), 4 Bro. Pari. Cas. 111.
37 (1790) 3 Term Rep. 584.
38 (1797) 3 Ves. Jun. 423.
3°(1805) 11 Ves. Jun. 283.
Private Rights 159
In The Lomonosoff (1921),"° salvage was awarded for rescuing
a ship from ' Bolsheviks ' at Murmansk, where there was ' no
established government at all '. But in A. Gagniere & Co. v.
Eastern Co. of Warehouses, etc., Ltd. (1921),41 it was held that
seizure by the Soviet officials was an act of government, and not
an act of ' civil commotion \ In these cases, it seems that the
realities of the situation have been taken into account.
In the celebrated case of Luther v. Sagor (1921),iS the court
reverted to the view of denying the validity of the confiscatory
laws of unrecognised powers. This was an action for the recovery
of a quantity of plywood confiscated in Russia by the then un-
recognised Soviet Government and subsequently sold to the
defendant. Roche J., giving judgment for the plaintiff, said :
'. . . I am not satisfied that His Majesty's Government has
recognised the Soviet Government as the Government of a Russian
Federative (sic) Republic or of any sovereign State or power. I
therefore am unable to recognise it, or to hold it has sovereignty,
or is able by decree to deprive the plaintiff company of its
property.' 13
The United States courts, in dealing with Civil War cases,
have recognised certain effects of acts and laws of the Confederacy
affecting titles to property within its jurisdiction." In the Soviet
cases, the courts have been careful to distinguish between
properties within the Russian territory and those without. The
transfers of titles to property in Russia under Soviet laws were
generally upheld.45
The most important American case on this subject is Salimoff
and Co. v. Standard Oil Co. of New York (1933)/6 The plaintiff
40 [1921] P. 97.
41 The Times, April 30, 1921.
42 [1921] 1 K.B. 456, reversed on further facts, 3 K.B. 532. See comments in
Borchard, loc. cit., n. 20, p. 138 above, p. 82. See similar decision by the
Tribunal de la Seine (1923), 51 J.D.I., 1924, p. 26. Approved by Noel-
Henry, op. cit., n. 29, p. 139 above, s. 126. For further comments see Lipstern,
Recognition and the Application of Foreign Law, 35 Grotius Transactions,
1949.
43 [1921] 1 K.B. 477.
44 Below, p. 309 et seq.
45 See Andrews J., in Wulfsohn v. R.S.F.S.R. (Hudson, p. 113; Green, op. cit.,
n. 7, p. 141 above, No. 35); James v. Second Russian Ins. Co. (239 N.Y.
(1925) 248: Hudson, p. 127). But see Cardozo J., in Sokoloff v. National
Bank of New York, in which he said {hat the confiscation by an unrecognised
government was no more than ' seizure by bandits or by other lawless
bodies' (Cases, p. 159).
46 (1933) 262 N.Y. 220, 186 N.E. 679, Hudson, p. 135.
160 Legal Effects of Recognition
sued for ownership of some oil extracted from lands in Russia,
which had been confiscated by the Soviet Government. He based
his case upon the authorities of Luther v. Sagor and the Sokoloff
case. Pound C.J., delivering the opinion of the New York Court
of Appeals, said that although no full effect could be given to
acts of de facto governments they should not be ignored.
' The question with us ', he said, ' is whether, within Russia,
the Soviet decrees have actually attained such effect as to alter
the rights and obligations of parties in a manner we may not in
justice disregard, even though they do not emanate from a law-
fully established authority, recognised politically by the govern-
ment of the United States.' "
The Soviet Government was found to be in fact in existence.
The United States Government admitted that it had functioned
as a de facto or quasi government since 1917. It was refused
political recognition ' as one might refuse to recognise an
objectionable relative, although his actual existence could not
be denied '.dS The learned Chief Justice concluded: 'The
confiscation is none the less effective. The government may be
objectionable in a political sense. It is not unrecognisable as a
real governmental power which can give title to property within
its limits.' 49
What seemed to be a settled rule as laid down in the Salimoff
case was again placed in doubt in the cases arising out of the non-
recognition by the United States of the absorption of the Baltic
Republics by the Soviet Union. Several actions were brought in
American courts for possession of ships belonging to nationals of
these Republics, and which had been confiscated by Soviet
decrees. The libellants were original owners who were acting
at the behest of the Soviet authorities. In The Kotkas (1940),50
and The Regent (1940),51 the New York Court dismissed the libel
on curiously conflicting grounds: that the Soviet decrees had
deprived the owners of power to institute such an action; and that
the United States did not recognise the validity of the Soviet
decrees in the Baltic States. In The Signe (1941),52 a Louisiana
47 262 N.Y. (1930) 220, 224; Hudson, p. 136.
iSlbid., p. 137.
19 Ibid.
'"(1940) 35 F. Supp. 983, Annual Digest, 1941-1942, Case No. 15.
51 (1940) 35 F. Supp. 985, ibid., Case No. 15, note.
52 (1941) 37 F. Supp. 819, Annual Digest, 1941-1942, Case No. 16.
Private Rights 161
Court held that the Consul-General of the former Estonian
Republic had the right to act as trustee under the Estonian laws.
In a later stage of litigation, the Estonian territory was overrun
by German forces. The state of affairs lost all semblance of
stability, and the authority of the Estonian Consul-General was
recognised pending the development of future events.53 In The
Denny (1941),51 however, both the District Court of New Jersey
and the Circuit Court of Appeals, Third Circuit, were agreed
that, following the Salimoff judgment, the effects of Soviet
laws upon persons and property within its jurisdiction must be
recognised.
The more recent case of The Maret (1946),55 seems to be a very
strong case for the reversion to the traditional doctrine of non-
recognition. Here the United States Court of Appeals, Third
Circuit, refused to recognise the ownership of the Soviet Union
over a nationalised Estonian ship and allowed the Estonian
Consul-General to act for the co-owners of the ship, expressly
rejecting the views of Dickinson and Borchard and the principles
of the Sokoloff and Stoddard decisions. [In Latvian State Cargo
and Passenger S.S. Line v. Clark (1948) the United States District
Court, District of Columbia, refused to award to the plaintiff
company, in whom the Latvian Soviet Government had vested the
title in three nationalised ships, the insurance paid in respect of
the vessels after they had been sunk. The Court remarked :
' A court may not give effect to an act of an unrecognised
government, for by doing so it would tacitly recognise the govern-
ment, invade the domain of the political department, and weaken
its position.' 56]
53 The Signe (renamed Florida) (1943), 39 F. Supp. 810, 133 F. (2d) 719, Annual
Digest, 1941-1942, Case No. 19. Similarly, Buxhoeveden v. Estonian State
Bank (1943) 41 N.Y.S. (2d) 752, 181 Misc. 155; with regard to Latvia, In re
Graud's Estate (1943) 41 N.Y.S. (2d) 263, 45 N.Y.S. (2d) 318, cited in
Lauterpacht, p. 432, n. 2
51 (1941) 40 F. Supp. 92, (1942) 127 F. (2d) 404, Annual Digest, 1941-1942,
Case No. 18; cf. above, p. 156.
55 (1946) 145 F. (2d) 431, cited in Langer, op. cit., n. 28, p. 60 above, pp. 267-8.
See similar decisions in Irish Courts, The Ramava (1941), High Ct. of Eire,
75 Irish Law Times 153, Annual Digest, 1941-1942, Case No. 20 (reported as
Zarine v. Owners, etc. (1941), 36 A.J.I.L., 1942, p. 490). French Courts (in
Jellinek v. Levy (1940), Annual Digest, 1919-1942 (Supplementary Volume),
Case No. 12; X. v. Levit & Walter (1939), ibid., Case No. 13), and a Swiss
Court (in Maison de Banque v. Thorsch (1938), ibid., p. 25, n.) have recently
refused to recognise German confiscatory laws in Czechoslovakia and Austria,
respectively, on the ground of public policy.
56 [(1948) 80 F. Supp. 683; 43 A.J.I.L., 1949, p. 380.]
162 Legal Effects of Recognition
As the absorption of the Baltic States by the Soviet Union was
regarded by the United States as contrary to international law,
it is not certain whether the rigidity of the principle of non-
recognition would be equally applied to cases of secession or
internal changes of government.
§ 4. Marriage and Divorce
To make the validity of marriage and divorce depend upon the
political recognition of governments would certainly result in the
most astounding absurdities. It is most astounding because it
would affect most profoundly the human relations involved.
Married couples would become promiscuous; children bastard-
ised; and remarried divorcees bigamous, because some foreign
State failed to recognise the government of the country in which
the marriage was solemnised or in which the divorce was granted.
An individual might be married or unmarried, bigamous or not
bigamous, legitimate or illegitimate, according to the country he
was in at the time.
There is no reported case on this subject in Anglo-American
courts. A dictum in Banque de France v. Equitable Trust Co.
(1929)," that a marriage valid where celebrated is universally
valid, seems to express the correct rule. However, the contrary
doctrine seems to have been adopted by several continental courts.
In Chiger v. Chiger (1926), a petition by Russian nationals for
divorce on grounds recognised by Soviet law failed because the
Soviet Government was not recognised in France.58 A marriage59
and a divorce'0 satisfying the requirements of both the Kerensky
and the Soviet laws were declared null and void by a Hungarian
37 (1929) 33 F. (2d) 202, Annual Digest, 1929-1930, Case No. 22, Dickinson,
loc. cit., n. 27, p. 138 above, p. 225.
88 (1926), 53 J.D.I., 1926, p. 943, Annual Digest, 1925-1926, Case No. 18.
In fact, the Soviet law of marriage and divorce was more similar to the
French law than the old Russian law. See Grouber and Tager, La Revolution
Bolchevique et le Statut Juridique des Russes; le Point de Vue de la Juris-
prudence Frangaise, 51 I.D.I., 1924, p. 8, at p. 27.
19 Soviet Marriages in Hungary Case, Royal Hungarian Court of Appeal,
Annual Digest, 1925-1926, Case No. 22.
*°Jelinkova v. De Serbouloff, 54 J.D.I., 1927, p. 189, Annual Digest, 1925-1926,
Case No. 20. The same court in a later decision upheld a divorce, recog-
nising the Kerensky laws in preference to Soviet laws (Digmeloff v The
State Civil Officer of St.-Josse-ten-Noode (1928), 55 J.D.I., 1928, p 1253,
Annual Digest, 1927-1928, Case No. 45).
Private Rights 163
and a Belgian Court, respectively, on the ground that the require-
ments of the Czarist laws had not been met.
In more recent decisions Hungarian courts have abandoned
political non-recognition as a ground for the non-recognition of
Soviet marriages, and have adopted, instead, the doctrine of public
policy.61 The Federal Court of Switzerland, in consonance with
its earlier judgment,62 held that Soviet laws could be taken
cognizance of so long as they did not offend against the canons of
public policy.63 A certificate by a Soviet Official that Russian law
would recognise a decree of divorce pronounced by the Swiss
courts was accepted by the court as a finding of fact.
§ 5. Contract and Succession
Tin cases concerning contracts the effect of the laws of unrecog-
nised powers seems to have been more universally recognised^) In
Dougherty v. Equitable Life Assurance Society (1929), the lower
court held that the annulment of life insurance policies by Soviet
decree was a good defence to an action on a policy issued by a
New York Company in Russia before the revolution.64 The
judgment was reversed by the Appellate Division of the Supreme
Court of New York who relied upon the authority of the Sokoloff
case and Sliosberg v. New York Life Insurance Co. (1927). 65
Dougherty v. Equitable Life Assurance Society of U.S. was again
reversed by the Court of Appeals of New York 66 in 1934, after
the recognition of the Soviet Government by the United States.
Although the circumstances had vitally altered since the decision
in the Appellate Division, owing to the intervening recognition
in 1933, yet the criticism of the Court of Appeals that the court
had relied wrongly upon the Sokoloff and the Sliosberg cases was
nevertheless valid. For in those two cases the contracts in
question were American contracts and the ' proper law ' could
*l In Klaudia K. v. B.F., the Sup. Ct. of Hungary held that a de facto mar-
riage could be recognised in an action for maintenance {ibid., 1925-1926,
p. 32, n).
t2 Hausner v. Banque Internationale de Commerce de Petrograd (1924), see
below, p. 168, n. 6.
*3 Tcherniak v. Tcherniak (1928), Annual Digest, 1927-1928, Case No. 39.
"(1929) 135 Misc. (N.Y.) 103.
*5 (1927) 244 N.Y. 482, 155 N.E. 749, Hudson, p. 129.
"(1934) 266 N.Y. 71, 193 N.E. 897, Hudson, p. 152.
164 Legal Effects of Recognition
not have been Russian law in any case.67 The Sliosberg case did
not actually decide that point at all. It merely declared Section
169a of the Civil Practice Act unconstitutional, as it would deprive
parties entitled to sue of their legal remedy.68 Even if the inter-
vening recognition had not taken place, it is not believed that, in
the face of these criticisms, the judgment of the Appellate Division
could have been sustained.
The effect of Soviet decrees upon contracts made in Russia
was recognised by Swiss,69 Egyptian,70 and Belgian courts. The
Belgian court declared :
'It appears to be impossible to ignore completely the fact
of the existence of the Soviet Government; nor, in the face of
circumstances which show every prospect of continuing in-
definitely, can the courts refuse absolutely all effect to the only
system of law in actual application in Russia today without gross
inequity.' 71
In matters of succession, French " and Egyptian 7S courts
applied the old Russian law. There was obvious difficulty in
applying Soviet law because it was confiscatory and it was
impossible to enforce a confiscatory law on behalf of a govern-
ment not recognised.74 In German courts, the Soviet law was
also suppressed, but, instead of the old Russian law, the German
law of intestate succession was applied.75 This last solution
appears to be a sound one, since, in applying the law of the forum,
the court was merely resorting to the undisputed doctrine of
public policy.
67 See Dickinson, loc. cit., p. 226, n. 55. [Similarly, in Merilaid & Co. v.
Chase Nat. Bank of City of N.Y. ((1947) 71 N.Y.S. (2d) 377), the Supreme
Court of New York County pointed out : ' The property in this action is
located in New York, where the contract relation was originated . . . The
public policy of the State determines when the foreign legislation will apply,
and a decree which is contrary to that policy will not be given effect.]
08 Crane J., in the Dougherty case, Hudson, p. 155.
'■'Schinz v. High Ct. of Zurich (1926), Annual Digest, 1925-1926, Case No. 23.
70 Charalambos Papadopoulos v. Monastery of Mount-Sinai, Mixed Court of
Appeal of Egypt (1927), ibid., 1927-1928, Case No. 41.
71 N. D'Aivassoff v. De Raedemaker (1927), ibid., 1927-1928, Case No. 46.
72 Grouber and Tager, loc. cit., p. 16.
78 Hanawi v. Crddit Lyonnais, Annual Digest, 1925-1926, Case No. 21.
74 [See also Merilaid & Co. v. Chase Nat. Bank of City of N.Y. (1947), 71
N.Y.S. (2d) 377, in which an American court refused to give effect to a
confiscatory decree of the unrecognised Estonian Soviet Republic]
75 Freund, La Revolution Bolchevique et le Statut Juridique des Russes; le
Point de Vue de la Jurisprudence Allemande, 51 J.D.I., 1924, p. 51, at pp. 58-9.
Private Rights 165
§ 6. Procedural Rights of Private Litigants
The procedural rights of foreigners in ordinary American courts
are not affected by the non-recognition of their government. This
right is a right under the law of the forum and not a right under
international law.76 The conditions for bringing the suit are
the same, irrespective of the recognition of the plaintiff's
government.77
The right to bring an action against the United States in the
Court of Claims is, according to Section 135 of the United States
Judicial Code, conditioned upon reciprocity.78 In Rossia
Insurance Co. v. U.S. (1923),79 the plaintiff contended that,
the Soviet Government being unrecognised, the court
should presume the continuance of the pre-revolutionary law
under which American citizens were permitted to prosecute
claims against the Russian Government.80 The court rejected
the argument, holding that ' our jurisdiction depends upon the
ascertainment of an existing and easily provable fact '.81 In
Russian Volunteer Fleet v. U.S. (1930), the United States Supreme
Court decided that the constitutional rights of individuals under
the Fifth Amendment do not depend upon the reciprocity of
other governments. The right of aliens to recover just com-
pensation ' should not be defeated or postponed because of the
lack of recognition by the Government of the United States of the
regime in his country '.*2
"The right of aliens to sue, though grounded on comity, has become a fixed
right in the United States. See Kellogg J., in Sliosberg v. N.Y. Life Ins. Co.
(1927), 244 N.Y. 482; Hudson, p. 132. But see Russian Reinsurance Co. v.
Stoddard (1925), 240 N.Y. 149, Cases, 172.
" Falkoff v. Sugerman (1925), 26 Ohio N.P. (N.S.) 81, cited in Dickinson,
loc. tit., p. 221.
" 36 U.S. St. L. 1139; quoted ibid.
79 (1923) 58 Ct. CI. 180, Annual Digest, 1923-1924, Case No. 18.
80 This was the view held by the Civil Tribunal of Brussels in Bekker v.
Willcox (1923), ibid., Case No. 22.
81 Quoted in Tennant, loc. cit., n. 18, p. 144 above, p. 718.
" Russian Volunteer Fleet v. U.S. (1929), 68 Ct. CI. 32, 1930) 282 U.S. 481, 492.
^y
CHAPTER 12
SUGGESTIONS FOR A REALISTIC APPROACH
The review of the judicial practice, in particular of the British
and American courts, seems to yield the following conclusions:
the right of a foreign power to sue in a national court is a matter
of comity; where there is no comity, the fact of having been
recognised does not necessarily entitle a foreign power to institute
suits; the right of immunity, whether based upon comity or non-
submission, is, likewise, not a necessary consequence of recogni-
tion, although recognition usually implies comity; international
acts of actual governments are generally regarded as binding upon
the nation, notwithstanding the lack of recognitionT)
\As regards the effect of non-recognition upon private litiga-
tion in which the validity of laws or acts of the unrecognised
power is involved, there is, on the whole, a lack of uniformity
and consistency in the decided cases?\ Laws of unrecognised
powers as lex contractus in private contracts are generally
enforced. The United States, according to its own internal law,
allows procedural rights to aliens, irrespective of the recognition
of their governments. Questions of personal status, marriage
and divorce seem to depend upon the recognition of the power
whose law is in question. But this is not conclusive, as some
courts have based their judgments on the principle of public
policy, (Questions of property and succession are generally com-
,J plicated by the confiscatory character of the laws of the
unrecognised power, and the non-application of these laws need
not imply the non-existence of the power in questionA In cases
regarding the status of moral persons created or dissolved by the
laws of unrecognised powers, the American decisions evinced
a tendency to admit the existence of those laws. When feasible,
the court would try to avoid direct judgments on that point, and
the desire to give protection to local interests seems to have
entered into the consideration of the judges in several instances.
The application of foreign laws in private litigation is
166
A Realistic Approach 167
essentially a question of private, rather than public, international
law. It is not believed that there exists a general right of one
State to have its- laws applied in the courts of another State
although, in practice, a State usually shows respect for the laws
of a friendly State, and to reject them en bloc may be regarded
as contrary to comity, the basis of the conflict of laws being the
rendering of internal justice, and not the promotion of inter-
national friendship. A foreign law is applied not because it is
the expression of sovereign will, but because it does in fact create
legal relations within its territory, and such a fact provides a
solution to the question at bar. Under the modern theory, the
foreign law is regarded as mere fact, one of the facts upon which
the decision is to be based.1 From this point of view, the fact
that a law emanates from a recognised or an unrecognised foreign
power is immaterial to its applicability in a particular case, so
long as that law does in fact govern the case.2
Those who oppose this view and follow Lord Eldon's
doctrine that the court must not take notice of new States or
governments not recognised by the government 3 seem to be
obsessed by two fears : that by admitting the validity of the laws
of unrecognised powers there is a danger of disharmony with the
executive * ; and that, by so admitting, the court would be bound
to give full effect to such laws, however objectionable. These
1 Beak, A Treatise on the Conflict of Laws, 1935, vol. I, p. 53. [See also A/S
Tallinna Laevauhisus et al. v. Estonian State Shipping Line ((1946) 80 Lloyd's
List L.R. 99) the Court of Appeal held that since the plaintiffs had intro-
duced evidence of the law of the former Estonian government, while no
evidence was introduced of Soviet law or of the law of the Estonian Soviet
Republic which was recognised as the de facto government of Estonia, they
were entitled to the insurance moneys in issue, for foreign law must be
proved as a fact.]
2 See Tallinna Laevauhisus case (1946). Noel-Henry concedes that, although
the court may refuse to admit the juridical capacity of an unrecognised
power, it should not ignore what that power has actually accomplished
(n. 32, p. 110 above, p. 242). It is suggested by another writer that, in
conflict of laws cases, the foreign territorial law is the law of the ' actual
organised social control ', rather than the law of the ' sovereign in political
theory'. As these cases are not concerned with claims associated with or
derived from political sovereignty, the application of such territorial laws
does not affect the question of political recognition. (Notes, 38 H.L.R., 1924-
1925, p. 820).
3 Grouber and Tager, loc. cit., n. 58, p. 162 above, p. 8; Idelson, La Revolution
Bolchevique et le Statut Juridique des Russes; le Point de Vue de la Juris-
prudence Anglaise, 51 J.D.I., 1924, p. 28; Prudhomme, n. 11, p. 152 above,
p. 318; Crane, Le Statut du Gouvernement Sovietlque en Angleterre et en
Amerique, 52 J.D.I., 1925, p. 344; Italian and Egyptian practice cited in
laffe, op. cit., n. 21, p. 15 above, p. 189.
* [See Latvian State Cargo and Passenger S.S. Line v. Clark ((1948) 80 F. Supp.
• 683).]
168 Legal Effects of Recognition
fears can be easily dispelled. In the first place, the court does not
act for the State in the international sphere and its decisions do
not bind the State. As a refusal to apply a foreign law does not
imply non-recognition of the foreign power, its application is
similarly irrelevant to the question of recognition, which is a
political function. Courts in conflict of laws cases have often
treated laws of political subdivisions as foreign laws, without
necessitating the implication of recognition as sovereign.
As to the second point, courts are not bound even to give
effect to laws of powers which have been recognised, when such
laws are found to be contrary to the public policy of the forum.5
(Since the great majority of the cases regarding property and
succession, reviewed above, had to do with the confiscatory laws
\x of the unrecognised power, these questions could be conveniently
covered by the principle of public policy. 6J In cases regarding
5 Scrutton L.J., in Luther v. Sagor ([1921] 3 K.B. 532, 538) and Kellogg J., in
Sliosberg v. New York Life Ins. Co. (1927), 244 N.Y. 482, Hudson, 134) seem
to suggest that laws of recognised foreign governments must in no case
be refused application. But the more generally accepted view is that a
law, even emanating from a recognised power, may be rejected on the
grounds of public policy, the penal or political character of the law in
question. See Folliott v. Ogden (1789), 1 H.B1. 123; Ogden v. Folliott
(1790), 3 Term Rep. 726; Kaufman v. Gerson [1904], 1 K.B. 591; Lecou-
turier v. Rey [1910] A.C. 262; Vladikavkazsky Rly. Co. v. N.Y. Trust Co.
<1934), 263 N.Y. 369, Annual Digest, 1933-1934, Case No. 27; obiter dictum
in Dougherty v. Equitable Life Ass. Soc. of U.S. (1934), 266 N.Y. 71, Hudson,
p. 152, at p. 155; Decision of Ct. of Athens, 52 J.D.I., 1925, p. 1143; In re
Etat Russe v. C/e Russe de Navigation (Ropit), Trib. Com. de Marseilles
(1925), ibid., p. 391; same v. same, Ct. App. of Aix, France (1925), Hudson,
p. 149; Cie Nord de Moscou v. Phenix Espagnol, Ct. App., Paris (1928), Annual
Digest, 1927-1928, Case No. 42; U.R.S.S. v. Intendant General, Cour de Cass.,
France (1928), ibid.. Case No. 43; Societe Vairon v. Banque de Commerce
de Siberie, Cour de Cass., France (1929), ibid., p. 67; A/S Merilaid & Co.
v. Chase Nat. Bank of N.Y. (1947), 71 N.Y.S. (2d) 377. See also Cheshire
Private International Law, 1947, p. 175 et seq.; Habicht, The Application of
Soviet Laws and the Exception of Public Order, 21 A.J.I.L., 1927, p. 238;
Fachiri, Recognition of Foreign Laws by Municipal Courts, 12 B.Y.I.L.,
1931, p. 95, at p. 101; Prudhomme, loc. cit., p. 328; Freund, Les Rapports des
Traitis Russo-Allemands et V Application du Droit Sovietique en Allemagne,
ibid., p. 331, at p. 339; Lipstein, loc. cit., n. 42, p. 159 above. The Court
of Rome in Federazione Italiana Consorzi Agrari v. Commissariat of
the Soviet Socialist Republic and Societa Romana Solfati (1923), although
rejecting the Soviet law as contrary to public order, however, hinted
that a different decision might be given, had the commercial agree-
ment with the Soviets been ratified by the Italian Parliament (51 J.D.I.,
1924, p. 257); Annual Digest, 1923-1924, Case No. 5. In Nomis di
Pollone v. Cooperativa Garibaldi (1924), Soviet law was rejected because
the Soviet Government was onljf recognised de facto. But in an obiter
dictum, the court said that, even if the Soviet Government were recognised
de jure, its law would be no more enforceable (52 J.D.I., 1925, p. 226).
* This principle was applied by a Swiss court (Hausner v. Banque Inter-
nationale de Commerce de Petrograd (1924), 52 J.D.I., 1925, p. 488), and
agrees with the practice of German courts (Freund, La Revolution Bol-
chevique et le Statut Juridique des Russes; la Point de Vue de la lurispru-
A Realistic Approach 169
the dissolution of corporations by the laws of unrecognised
powers, limitation on the effect of these laws may be achieved by
interpreting them as merely putting the corporations in liquida-
tion, without the immediate necessity of destroying their
existence.7 Or, in order to give protection to local interests, the
court might, while admitting the dissolution of the foreign cor-
porations, allow the former directors to collect the assets of the
corporations for the benefit of the shareholders. Alternatively,
the court might deny the rule that dissolution at the place of
domicile is effective elsewhere, and hold that the status of
corporations is a matter for the decision of the forum.8 It is
thought that to allow the foreign corporation to be dissolved
according to the laws of the unrecognised power and to place the
proceeds of liquidation under public guardianship is more con-
ducive to justice than to allow former directors to dispose of the
property without restriction.9
(By treating the question of the validity of laws and acts of an
unrecognised power as a simple application of the ordinary
principles of private international law, it is believed that many
suggestions for an artificial compromise between non-recognition
and the necessity for justice would be rendered unnecessary). The
suggestions, for instance, that the existence of unrecognised
powers may be treated as an instance of force majeure,™ or that
dence Allemande, 51 J.D.I., 1924, p. 51, at p. 55). The Ct. of App. of
Amsterdam upheld a law of the unrecognised Soviet Government which
was found to be not contrary to Dutch public order (Herani, Ltd. v. Wladi-
kawkaz Rly. Co. (1942), Annual Digest, 1919-1942 (Supplementary Volume,
Case No. 10). In a recent English case, a law of a government recognised
de facto was rejected on the ground, inter alia, of its confiscatory character
(Tallinna Laevauhisus Ltd. v. Nationalised Tallinna Laevauhisus and
Estonia State Shipping Line (1946), 79 Lloyd's List, L.R. 245); [on appeal,
however, the Court seemed to rely on the fact that the Soviet and Estonian
laws in issue were not proved (80 Lloyd's List L.R. 99).]
7 This method has been applied by British courts. See the dissenting opinion
of Atkin L.J., in Russian Commercial and Industrial Bank v. Comptoir
d'Escompte de Mulhouse [1923], 2 K.B. 630, 633, adopted by House of
Lords, on appeal, (1924) 40 T.L.R. 837, 841. Similarly, Employers' Liability
Ass. Corp. v. Sedgwick, Collins & Co. [1927], A.C. 95; the Tallinna Case
(79 Lloyd's List L.R. 245). Also see the decision of French Ct. App. of Aix
in U.R.S.S. v. Ropit (1925), Hudson, p. 149, at p. 151; and the decision
of Dis. Ct. of Dordrecht, Holland, in Vseobtchaia Stroitelnaia Kompania
v. L. J. Smit (1927), Annual Digest, 1927-1928, Case No. 47. Hinted as a
possible approach to the problem of non-recognition in James v. Second
Russian Ins. Co. (1925), 239 N.Y. 248, 255, Hudson, pp. 125-6,
* Nebolsine, The Recovery of the Foreign Assets of Nationalised Russian
Corporations, 39 Yale L.J., 1929-1930, p. 1130, cited in Tennant, loc. cit.,
n. 18, p. 144 above, p. 733.
"Fraenkel, loc. cit., n. 1, p. 135 above, p. 566.
10 Noel-Henry, op. cit., n. 29, p. 139 above, s.. 125.
170 Legal Effects of Recognition
effect should be given to acts of unrecognised powers where
violence to fundamental principles of justice or public policy of
the forum might otherwise be done 1X would seem to add very
« little to the solution provided by the ordinary principles of the
conflict of laws. For, as regards the former suggestion, since all
foreign laws are, in principle, treated as facts in private inter-
national law, the notion of force majeure would be superfluous.
As to the latter suggestions, since the basis for the application
of foreign law is the rendering of internal justice, it might be said
that there is a general public policy requiring the application of
all the laws of unrecognised powers according to the rules of
private international law (including the rule regarding the
exception of public order) ! Further, it may be pointed out that
if the refusal to apply the laws of an unrecognised power is based
upon the view that such a power has no juridical existence, then,
even as an exception, such laws ought not to be given cognizance.
In conclusion,(jt may be said that the applicability of laws of
i / a foreign power in private litigation ought not to be determined by
the political recognition or non-recognition of that power, and
sufficient safeguards against objectionable legislation can always
be found in the ordinary principles of private international law?
Although recognition by the government is sufficient to establish
the fact of the existence of a political entitylnon-recognition need
,y not deny such existence, and, consequently, does not preclude the
court from determining the rights and obligations arising out of
such existence^? This view is fully endorsed by the Institute of
International Law.12 Article 1 (3) of its Resolution of 1936 reads :
' The existence of a new State with all the juridical effects
which are attached to that existence is not affected by the refusal
of recognition by one or more States.'
[Similarly, in Article 9 of the Bogota Charter, 1948, the
Organisation of American States declared :
'The political independence of the State is independent of
recognition by other States.' 13
11 Sokoloff v. National Bank of N.Y. (1924), Cases, p. 160; Habicht, loc.cit.,
p. 252. See comments on this doctrine of the 'inverse of the exception
of public order' in Dickinson, loc. cit., n. 27, p. 138 above, p. 237; Tennant,
loc. cit., pp. 721-3, 725-6.
12 30 A.J.I.L., 1936, Supplement, p. 186.
13 [18 Dept. of State, Bulletin, p. 666.]
A Realistic Approach 171
In the same way, although it makes no reference to recogni-
tion, the Draft Declaration on Rights and Duties of States
adopted by the International Law Commission provides:
'Every State has the right to independence and hence to
exercise freely, without dictation by any other State, all its legal
powers, . . . (and) has the right to exercise jurisdiction over its
territory and over all persons and things therein, subject to the
immunities recognised by international law.' "]
In Article 17 of the Institute's Resolution, it is further provided
that, even after a government is recognised de jure, the extra-
territorial effect of its acts are nevertheless subject to the
exception of public order and that non-recognition does not
imply the denial of such extraterritorial effect. The practice of
the American courts has clearly demonstrated that the continued
ignoring of the laws of a power whose existence could not be
denied 1S creates a condition of artificiality and unreality which is
embarrassing, unreasonable and unjust.
In a case decided after the recognition of the Soviet Govern-
ment, the New York Court of Appeals, in retrospect, declared that
in all the pre-recognition cases its decision had been based upon
public policy, and that the decisions in the earlier cases would be
the same, if they had been heard at the time recognition had been
granted.16
14 [Report of the First Session, U.N. Doc. A/925, 1949, p. 8, Arts. 1 and 2.]
15 The courts have constantly admitted the factual existence of the Soviet
Government (see Wulfsohn v. R.S.F.S.R. (1923), Hudson, p. 112, Green,
op. cit., n. 7, p. 141 above, No. 35; R.S.F.S.R. v. Cibrario (1923), Hudson,
p, 117; James v. Second Russian Ins. Co. (1924), ibid., p. 126; Sliosberg v.
New York Life Ins. Co. (1927), ibid., p. 131; Salimoff v. Standard Oil Co. of
N.Y. (1933), ibid., p. 137), and so did the communications of the State
Department (in Russian Government v. Lehigh Valley R.R. Co. (1919), 293
Fed. 135, 137, quoted in Tennant, loc. cit., p. 710; Salimoff case, Hudson,
p. 136). It is suggested by Connick that whether effect should be given to
acts of unrecognised powers depends upon whether, in withholding recognition,
the government has chosen to deny the existence of that power altogether
or merely to refuse diplomatic intercourse with it, and that in the Soviet cases
the existence was not denied (The Effect of Soviet Decrees in American
Courts, 34 Yale L.J., 1925, p. 499, at p. 501).
16 Vladikavkazsky Rly. Co. v. N.Y. Trust Co. (1934), 263 N.Y. 369, Annual
Digest, 1933-1934, Case No. 27.
CHAPTER 13
RETROACTIVITY OF RECOGNITION
§ 1. The Nature of the Doctrine of the Retroactivity
of Recognition
It has been settled since the decision in Luther v. Sagor (1921)
that the doctrine of the retroactivity of recognition is an accepted
principle of English law. In that case, the Court of Appeal held
that, the Soviet Government being recognised, it must be treated
as ' having commenced its existence at a date anterior to any
date material to the dispute between the parties to this appeal.'1
In arriving at this decision, the court did not refer to any English
authority, but accepted as ' weighty expressions of opinion ' the
judgments of the United States Supreme Court in Williams v.
Bruffy (1877),2 Underhill v. Hernandez (1897),3 and Oetjen v.
Central Leather Co. (1918).4
The question had previously arisen on several occasions in
English courts. In Wright v. Nutt (1789), the Lord Chancellor,
referring to a law passed by the legislature of Georgia during the
American Revolution, said that while ' it may be a question for
private speculation, whether such a law was wise or improvident,
... we must take it as the law of an independent country '.5 The
same view was taken by the Court of Common Pleas in Folliott v.
Ogden (1789).6 But in two subsequent decisions by the Court of
King's Bench {Ogden v. Folliott (1790) 7 and Dudley v. Folliott
(1790)) * the position was reversed." The judgment in the former
case was affirmed by the High Court of Parliament. The question
of retroactivity was specially brought up by the counsel for the
1 [1921] 3 K.B. 536, 543.
2 (1877) 96 U.S. 176, 186.
3 (1897) 168 U.S. 250, 253.
4 (1918) 246 U.S. 297, 302-3.
5 (1789) 1 H.B1. 136, 149.
6 (1789) 1 H.B1. 123, 135.
'(1790) 3 Term Rep. 726; (1792) 4 Bro. Pari. Cas. 111.
8 (1790) 3 Term Rep. 584.
9 See above, p. 158.
172
Retroactivity of Recognition 173
plaintiff in error,10 and was expressly ruled out by the court.11
The question was again raised in Barclay v. Russell (1797). It
was held that the Treaty of 1783 acknowledged the independence
of the United States from the year 1776. ' From the declaration
of independence it (the Treaty) considers it (the United States),
no matter how created, as an independent power.' 12
This conflict of judgments was at last settled by Lutherv.Sagor,
which has since been consistently followed. 12a Soviet decrees
made before recognition were later treated as acts of sovereign
authorities.13 In Princess Paley Olga v. Weisz (1929)," the
Court of Appeal expressly adopted the doctrine of retroactivity,
which Mackinnon J. had rejected in the Court below, as the
ground for its judgment. In 1933 the express sanction of the
House of Lords was given to the doctrine in Lazard Bros, and
Co. v. Banque Industrielle de Moscou, the same v. Midland Bank
Ltd.15 [In R. v. Koscuikiewicz, R. v. Ulatowski (1948), Goddard
L.C.J, showed that the doctrine of the retroactivity of recogni-
tion had been embodied in an English statute. The Polish
National Government was recognised by Great Britain on July
5, 1945,16 and in 1947 the Polish Resettlement Act,17 regulating
the position of Polish soldiers who refused to recognise the
authority of the new Government, came into force. This Act
stated 1S : 'As regards any period between the first day of
January, 1945, and the passing of this Act the powers conferred
"(1792) 4 Bro. Pari. Cas. Ill, 130.
11 Ibid., pp. 132-3.
la (1797) 3 Ves. Jun. 423, 433, 434.
12a [In Boguslawski v. Gdynia Amerika Line, [1949] 1 K.B. 157, however,
Finnemore J. did not regard the recognition of the new Polish Government
as retroactive to the date of its establishment. This was because the state-
ment of the Foreign Office declared that the former Government had been
recognised to a certain date, and the new Government from that date,
although it had been established a week earlier; confirmed on appeal [1950]
2 All E.R. 355. See also Civil Air Transport Inc. v. Chennault (1950), n. 14,
p. 120 above.]
15 Russian Com. and Ind. Bank v. Comptoir d'Escompte de Mulhouse [1925],
A.C. 112; Banque Int. de Com. de Petrograd v. Goukassow, ibid., p. 150;
Employers' Liability Ass. Corp. Ltd. v. Sedgwick, Collins & Co. Ltd. [1927],
A.C. 95; The Jupiter (No. 3) [19271, P- 250; First Russian Ins. Co. v. London
and Lancashire Ins. Co. (1928), 44 T.L.R. 583; Perry v. Equitable Life Ass.
Soc. of U.S.A. (1929), 45 T.L.R. 468; Kolbin v. Kinnear [1930], S.C. 737;
In re Russian Bank for Foreign Trade [1933], Ch. 745.
14 [1929] 1 K.B. 718; (1929) 141 L.T. 207.
13 [1932] 1 K.B. 617; [1933] A.C. 289, 297.
16 Langer, op. cit., n. 28, p. 60 above, p. 279.
17 10 & 11 Geo. 6, c. 19.
" S. 9 (8).
174 Legal Effects of Recognition
by Section 1 (1) of the Allied Forces Act, 1940,19 shall be deemed
to have been exercisable in relation to the said forces by reference
to the law of Poland in force on that day and as if the said forces
had not ceased to be recognised by the Government of Poland.'
Of this Section, Goddard L.C.J, said : ' It is clear . . . that the
Government of Poland, which we must take to be the Government
of Poland recognised by His Majesty, had ceased to regard these
men as Polish soldiers. . . . Obviously what this Section shows is
that from January 1, 1945, by which time a new Government was
set up in Poland which by the very terms of this Section it is clear
was recognised by His Majesty, that Government refused to
recognise ' the appellants as Polish soldiers.20]
The earliest American case in which the principle of retro-
activity was invoked is Murray v. Vanderbilt (1863) relating to
decrees of the Rivas-Walker Government of Nicaragua.21 In
Williams v. Bruffy (1877),22 the principle of retroactivity was
embodied in an obiter dictum and no authority was cited in its
support. Bankes L.J. in Luther v. Sagor (1921), however,
agreed that on principle the dictum was sound.23 In Underhill v.
Hernandez (1897) the defendant was sued for damages arising out
of acts committed in his capacity as Commanding Officer of the
party in revolt in Venezuela in 1892. Fuller C.J., in dismissing
the action, declared that if a revolutionary government succeeds
and is recognised ' then the acts of such government, from the
commencement of its existence, are regarded as those of an
independent nation \" In Oetjen v. Central Leather Company
(1918) the validity of a confiscatory act by the Carranza Govern-
ment of Mexico prior to its recognition by the United States, was
in issue, the Supreme Court of the United States said :
' When a government which originates in revolution or revolt
is recognised by the political department of our government as the
19 3 &4Geo. 6, c. 51.
20 [(1948) 33 Cr. App. R. 41, 47-8. Cx. Boguslawski v. Gdynia- Amerika Line,
[1949] 1 K.B. 157, [1950] 2 All E.R. 355.]
" (1863) 39 Barb. 140; quoted in Hervey, op. cit., p. 92. The earlier case of
Kennett v. Chambers (1852), 14 How. 38, has often been cited as a denial
of the doctrine of retroactivity. In that case, the contract in question was
illegal because of the breach of neutrality, not because of the lack of recog-
nition. It therefore could not be validated by subsequent recognition.
22 (1877) 96 U.S. 176, 186.
23 [1921] 3 K.B. 536, 543.
21 (1897) 168 U.S. 250, 253.
Retroactivity of Recognition 175
de jure government of the country in which it is established, such
recognition is retroactive in efiect and validates all the actions and
conduct of the government so recognised from the commencement
of its existence.' 2S
The principle has been frequently invoked and followed in later
American decisions 26 and has also gained acceptance in
European courts.27
(In spite of such widespread adoption in practice, writers on
international law are not entirely agreed whether the retroactive
effect is inherent in the act of recognition, and whether the
doctrine of retroactivity is a principle of international law.
Several writers have answered the first question in the
negative.28) Professor Lauterpacht and Mr. Jones think that the
attribution of retroactive effect to recognition is mainly the result
of political considerations rather than of juristic logic. Thus
Professor Lauterpacht writes :
' Essentially, the principle of retroactivity of recognition is one
of convenience. It would not be conducive to the maintenance of
friendly relations if, after recognition had been given, courts were
to continue to proceed on the theory that, for instance, legislative
acts of expropriation prior to recognition were acts of " thieves
and robbers " and conferred no, title.' 29
25 (1918) 246 U.S. 297, 302-3.
26 U.S. v. Trumbull (1891), 48 F. 94, Hudson, p. 822; Ricaud v. American
Metal Co. (1918), 246 U.S. 304; Monteblanco Real Estate Corp. v. Wolvin
Line (1920), 85 Southern 242, Annual Digest, 1919-1922, Case No. 29;
Terrazas v. Holmes, same v. Donohue, (1925), 115 Tex. 32, 46; Annual
Digest, 1925-1926, Case No. 43; Lehigh Valley R.R. v. State of Russia
(1927), 21 F. (2d) 396, Hudson, p. 118, at p. 120; Salimoff v. Standard Oil Co.
(1933), 262 N.Y. 220, Hudson, p. 135; Vladikavkazsky Rly. Co. v. N.Y. Trust
Co. (1934), 263 N.Y. 369, Annual Digest, 1933-1934, Case No. 27; Dougherty
v. Equitable Life Ass. Soc. (1934), 266 N.Y. 71, Hudson, p. 152; U.S. v.
Belmont (1937), 301 U.S. 324; Guaranty Trust Co. v. U.S. (1938), 304 U.S.
126; U.S. v. Pink (1942), 315 U.S. 203; U.S. v. New York Trust Co. (1946),
75 F. Supp. 583. See also Jones, The Retroactive Effect of the Recognition
of States and Governments, 16 B.Y.I.L., 1935, p. 42; Nisot, Is the Recognition
of a Government Retroactive? 21 Canadian Bar Review, 1943, p. 627;
Hervey, op. cit., p. 82 et seq.
27 French cases: Cie Nord de Moscou v. Phenix Espagnol (1928), Annual
Digest, 1927-1928, Case No. 42; De Mayenne v. Joutel (1926), ibid., Case
No. 44, 55 J.D.I., 1928, p. 710; Banque Com. Siberie v. Voiron (1928),
56 Ibid., 1929, p. 115; In re Marmatscheff (1929), Annual Digest, 1929-1930,
Case No. 150; In re Marchak v. Rabinerson (1933), 60 J.D.I., 1933, p. 959.
Dutch case: West Russian S.S. Co. v. Sucksdorff (1920), Annual Digest,
1919-1922, Case No. 103.
28 Jones, loc. cit., p. 55; Nisot, loc. cit, p. 627; Lauterpacht, pp. 59-60. Noel-
Henry thinks that the doctrine of retroactivity can only be applied by
internal, but not international, judges (op. cit., ss. 153-6).
29 Lauterpacht, p. 60.
u^
176 Legal Effects of Recognition
But were they ' acts of thieves and robbers '? If they really
were, it is doubted whether the doctrine of retroactivity should
ever be accepted as a principle of justice. For (it would be
contrary to all reason and common sense that acts of-thieves and
robbers could under any circumstance be treated as acts of
government, simply at the convenience of a foreign State. (_An
act can be treated as an act of government only because it has
always been one, although the treatment of it as such may have
been overdue?)
LNisot's theory is that retroactive effect is not inherent in the
recognition, but is the result of the endorsement of the acts in
question by the power recognised? ' For the recognising State ',
he says, * the recognised Government is, as from the moment of
recognition, competent to state authoritatively the law, past and
present, of the other State.' so Xhe effect of recognition, according
to this view, is merely to determine the authority competent to
say what acts are and what acts are not valid in its country in both
the past and the present. This would mean that in every litigation
before the courts of the recognising State, in which the validity
of a prior act of the recognised power is in issue, the courts should
make applications to the latter power to ascertain whether in its
opinion the act in question is regarded as valid. It is not believed
that this corresponds with the practice of the courts of any
country. What they do is merely to establish that the act in
question is the act of the power subsequently recognised, and the
attributes of sovereignty are automatically attached to it. It is
not open to the recognised power by means of a subsequent
' authoritative statement ' to repudiate what has been done, or to
claim that something has been done which in fact has not been
done. To allow the recognised power to do this would be to
accord it a privilege not permitted even to the government of the
forum, as it would amount to ex post facto legislation. Whether
an act is or is not an act of the government subsequently recog-
nised, it is believed, should be judged by an objective test, not
by the subjective determination of the government itself. Thus
Poland, at the end of the War of 1914-1918, contended that she
had always been in existence since the Third Partition. Would
the courts, according to Nisot's theory, be obliged to regard
S0Nisot, loc. cit., p. 631.
Retroactivity of Recognition 177
Polish law, rather than Austrian, Prussian and Russian laws, as
the law of the land from 1795 to 1918, if the Polish Government
should so regard it? S1 In The Jupiter (No. 3) (1927), it was
contended by the defendant that confiscation by the Odessa Soviet
in November, 1917, was in exercise of the sovereignty of the
Ukrainian Soviet Socialist Republic. Hill J. refused to accept
this theory on the ground that there was no continuity of govern-
mental activities.32 It is not believed that the case would have
been otherwise decided even had the Ukrainian Soviet Socialist
Republic expressly endorsed the act.33
f While not sharing the view that the retroactivity of recognition
is indirect or that it is subject to the convenience of the recognising
State, it is, however, not contended that such retroactivity is
- always inherent in the recognition. Recognition is retroactive
only in cases where there is a disparity of time between the com-
mencement of the actual existence of a power and its recognition
by the government of the forum, and where the court is bound by
the principle of judicial self-limitation. Where such conditions
exist, recognition by the political department liberates the court
from the doctrine of judicial self-limitation and enables it to assess
the significance of the "acts of the previously unrecognised power
on their merits, without the danger of transgressing the preroga-
tive of the executive. In this sense, retroactivity may be said to
flow directly from the recognition)
As regards the question whether retroactivity of recognition is
a principle of international law, the answer is that (so long as
States continue to base recognition upon factors other than the
fact of existence international law must allow recognition to be
retroactive. It may be regarded as a principle of international
law that the recognising State is entitled to rights and subject to
duties with respect to matters arising in connexion with the
recognised State prior to its recognition. If a general de facto
government, which has become extinct without having been
31 This is the actual decision of the Sup. Ct. of Poland in Republic {Poland) v.
Felsenstadt (1922), Annual Digest, 1919-1922, Case No. 16. See also above,
p. 91, n. 59.
"[1927] P. 122, 152-3; [1927] P. 250.
33 In fact, it had been endorsed, since the defence was conducted in the name
of the Italian company by the Union of Soviet Socialist Republics {ibid.,
123).
\^
178 Legal Effects of Recognition
recognised at all, can bind the State by its acts," a fortiori, a
government which has received subsequent recognition would
be the more competent to bind the StateTN
Mr. Jones holds a contrary view. He bases his argument
on the case of Andrew Allen, which came before the Anglo-
American Mixed Claims Commission in 1799, and the case con-
cerning Certain German Interests in Polish Upper Silesia, decided
by the Permanent Court of International Justice in 1926.33 In the
first case, the question was whether Allen was an American or a
British national after the Declaration of Independence but prior
to the recognition of 1783. Owing to conflicts of opinion, the
Commission did not come to any definite conclusion.36
In the case concerning Certain German Interests in Polish
Upper Silesia, the question was whether Poland could claim
benefits from the Armistice of November 11, 1918, and the
Protocol of Spa, December 1, 1918. The decision of the
Permanent Court of International Justice did not bear directly
upon the question of retroactivity. On the first point, it was held
that ' Poland, as it was becoming constituted in the Russian
territories occupied by the Central Powers, was undoubtedly not
at war with Germany \37 Without war, there could be no
armistice. On the second point, the Protocol only provided for
reparation to Poland ' in her capacity as an integral part of
the former Russian Empire ', and not in her capacity as an
independent State.38 She would not be entitled to claim any
right in the latter capacity, whether the recognition was
retroactive or not.
\The wide adoption of the doctrine of retroactivity by national
courts is substantial proof of its acceptance as a doctrine of inter-
national law.3" Professor Lauterpacht, who is opposed to this
view, nevertheless agrees that the doctrine is necessary for pre-
serving ' the legal continuity of the municipal system ' of the
3i Above, p. 145 et seq.; Tinoco Arbitration (1923), 1 Reports of International
Arbitral Awards, p. 369.
35 Jones, loc. cit., pp. 51-2.
s* Moore, International Adjudications (Modern Series), vol. 3, p. 238 et seq.
37 Series A, No. 7, p. 28.
38 Ibid. This case is fully discussed by Schwarzenberger, op. cit., n. 55, p. 22
above, pp. 62-4.
" See Articles 7, 16 and 17 of the Resolution of the Institute of International
Law, 1936 (30 A.J.I.L., 1936, Supplement, pp. 186-7).
Retroactivity of Recognition 179
State in which the revolution has taken place, and that the
preservation of such legal continuity is ' one of the objects of
international law V0)
§ 2. The Extent of the Application of the Doctrine
The question of the extent of the application of the doctrine may
be discussed from the point of view of the time limit, and of other
limitations.
As regards the time limit, several questions may arise. How
far back should recognition be related? Should the court or the
political department be the better judge of this question? May
the political department by express terms limit the retroactive
effect of its recognition? Can the previous affirmative refusal
to recognise set a limit to possible retroactivity?
In the earlier American cases it was simply laid down that
the recognition relates back to the ' commencement of its
existence '." The question still remains : When does the com-
mencement take place? In Luther v. Sagor (1921) the court
sought information from the Foreign Office, who replied that the
Provisional Government which was recognised by the British
Government remained in power until December 13, 1917, when
it was dispersed by the Soviet Authorities.'" The Trade Agree-
ment between Great Britain and the Russian Socialist Federal
Soviet Republic was signed on March 16, 1921. Bankes L.J.
decided upon these facts that December 13, 1917, must be
accepted as the date of the assumption of power by the Soviet
Government.13 In Kolbin v. Kinnear (1930), the recognition was
dated back to ' the foundation of the Republic in 1917 '." In
Lazard Bros, and Co. v. Midland Bank, Ltd. (1933), the House of
Lords decided that the recognition should date back ' to the
original establishment of Soviet rule, which was in the 1917
October Revolution V5 [A similar situation arose in Canada in
40 Lauterpacht, p. 60.
41 Williams v. Bruffy (1877), 96 U.S. 176, 186; Underhill v. Hernandez (1897)
168 U.S. 250, 253; Oetjen v. Central Leather Co. (1918), 246 U.S. 297, 302-3.
" Luther v. Sagor [1921], 3 K.B. 536.
43 Ibid., 544.
44 [1930] S.C. 737, 738.
45 [1933] A.C. 289, 297.
180 Legal Effects of Recognition
connexion with the recognition of the Estonian Soviet Socialist
Republic. The letter of the Department of External Affairs
which was considered in Estonian State Cargo and Passenger
Line v. S.S. Elise and Messrs. Laane and Baltster (1948),"^ stated
that Canada ' does not recognise de facto the Republic of Estonia
as constituted prior to June, 1940, . . . (and which) has ceased
de facto to have any effective existence '. Instead the Govern-
ment of the Estonian Soviet Socialist Republic was recognised
' to be the de facto Government of Estonia, (which) has de facto
entered ' the Soviet Union. The letter was dated January, 1947,
but the court held that it was retroactively effective to the time of
the establishment of the Government in June, 1940.]
As a matter of theory, upon what principle should the date
of the ' commencement of existence ' be determined? It is not
clear from the judgments reviewed above. Scrutton L.J., in
Luther v. Sagor, however, gave an indication of possible limita-
tions. He rightly pointed out that recognition need not relate
back ' to the first moment when some of the individuals sup-
porting its (the de facto government's) cause began to resist or
to attack the then established government '. Further than that
he would not go.46 In White, Child and Beney Ltd. v. Simmons,
same v. Eagle Star and British Dominions Insurance Co.
(1922), Roche J. seemed to have understood 'the commence-
ment ' as the moment when the revolution is ' consummated ' or
' completed '." Bankes L.J., in the same case on appeal, thought
that the moment should be that in which the ' government ' begins
to exist.48 According to these two latter views, the period in which
the revolutionary government was still opposed by other parties
in the civil war would not be covered by the retroactivity of
recognition. On the other hand, if the revolutionary phase of
the new government should be included within the period retro-
spectively validated, we might come to a point at which the
revolutionary party consisted of nothing more than a few plotters,
rioters or terrorists. It is believed that the more reasonable
solution would be to reckon the commencement of the existence
of a power from the moment it is possessed of a political organ-
45a [[1948] 4 D.L.R. 247; decision reversed on other grounds [1949] 2 D.L.R.
641.]
"[1921] 3 K.B. 557.
" (1922) 38 T.L.R. 367, 374.
liJbid., 616, 617.
Retroactivity of Recognition 181
isation such as would qualify it for recognition as a belligerent
community in civil war. Such a government, even if it were never
able eventually to establish itself, would be considered as capable
of discharging international duties with regard to matters within
its actual control.19 The retroactive validation of its acts must
be regarded as consistent with both principle and reason.
It has been further suggested that recognition may be related
back to a date even anterior to the de facto existence of the
recognised power. In two cases, the French courts gave effect
to Soviet laws which invalidated rights acquired under laws exist-
ing prior to the Bolshevik revolution.50 It does not seem to the
present writer that it is the effect of recognition which has been
carried beyond the date of the actual existence of the Soviet
Government. The recognition merely empowers the court to
give effect to legislation of the new government enacted sub-
sequent to the commencement of its existence, and no further.
The fact that such legislation is itself designed to produce retro-
active effect is quite another matter.
As regards the question whether judges must follow the
opinion of the executive in the determination of the date from
whence retroactivity should commence, Scrutton L.J. in Luther
v. Sagor (1921) answered emphatically in the affirmative.51 In
The Jupiter (No. 3) (1927),52 and in hazard Bros. v. Midland
Bank, Ltd. (1933)," the courts decided on the date to which
recognition should be related back upon their own knowledge,
without seeking information from the Foreign Office.
The question was made an important issue in White, Child
and Beney Ltd. v. Simmons (1922).51 Roche J., reviewing the
judgment of the Court of Appeal in Luther v. Sagor, was of the
opinion that the Court of Appeal had only decided that the courts
19 See below, p. 308 et seq. One writer thinks that the limit of retroactivity may
remain undefined, and may depend in each case upon the facts of the case
and the acts of the recognized power concerned (Crane, loc. cit., n. 3, p. 167
above, p. 347.)
50 GhaWi Orloff, Trib. Civil de Melun (1926), 54 J.D.I., 1 927, p. 667; De Mayenne
v. Joutel, Trib. Civil de la Seine (1926), 55 J.D.I., 1928, p. 710, Annual Digest,
1927-1928, Case No. 68. [Cf., also, Boguslawski v. Gdynia Amerika Line,
n. 12a, p. 173 above.] See Nisot, loc. cit., pp. 639-40.
51 [1921] 3 K.B. 557. [See, also, Civil Air Transport Inc. v. Chennault, n. 14,
p. 120 above.]
52 [1927] P. 126.
53 [1933] A.C. 297. Same in Princess Paley Olga v. Weisz [1929] 1 K.B. 729,
732.
" (1922) 38 T.L.R. 367, 616.
182 Legal Effects of Recognition
should seek information from the government to ascertain the
existence of a de facto government; the precise date of the com-
mencement of the existence of the Soviet Government was not a
subject for decision. Even if it had been decided upon, he
maintained, it was not a decision of law, but of fact, and would
be open to fresh consideration upon new information. In the
instant case, the Foreign Office, in two letters dated June 10, and
December 7, 1921, respectively, disclaimed the responsibility of
expressing any opinion as to how far recognition should relate
back, and observed that it was a question for the decision of the
court.55 Roche J., thereupon, assuming the precise date of the
accession of the Soviet Government to power as undecided, held
that the defendant who relied upon the act of the Soviet Govern-
ment had failed to make out his case.
The judgment was reversed in the Court of Appeal, which,
although it upheld the date decided upon in Luther v. Sagor
(1921), arrived at an independent conclusion without consulting
the Foreign Office.56
[In Estonian State Cargo and Passenger Line v. S.S. Elise
and Messrs. Laane and Baltster (1948) 56a the Canadian Depart-
ment of External Affairs expressly declined to answer from what
date it regarded the Estonian Soviet Socialist Republic as having
become part of the Soviet Union. The court decided that this
had taken place in June, 1940. J
American courts, in determining the crucial date of retro-
activity, seem to have relied upon their own judgment, rather
than upon the opinions of the State Department, although they
frequently resorted to the archives of the State Department for
information and facts.57 They seem to have regarded the
question as one of general history, which does not involve any
question of policy.
55 (1922) 38 T.L.R. 367, 371, 373. Similarly, in Tallinna Laevauhisus Ltd. v.
Estonian State Shipping Line (1946), 79 Lloyd's List L.R. 246; [in the Court of
Appeal, Tucker, L.J., said : ' The de facto recognition of the Estonian
Government . . . must be regarded as having retroactive effect at least to
July 21, 1940' ((1946) 80 Lloyd's List L.R. 99, 113), the date on which the
Estonian legislature resolved on joining the Soviet Union" (Langer, op. cit.,
n. 28, p. 65 above, p. 263). [See also Civil Air Transport Inc. v. Chennault,
n. 14, p. 120 above.]
56 At p. 617.
56a [[19481 4 D.L.R. 247, and see above, n. 45a.]
57 Underhill v. Hernandez (1897), 168 U.S. 250, 253; Oetjen v. Central Leather
Co. (1918), 246 U.S. 297, 299.
Retroactivity of Recognition 183
It follows from the conclusion thus arrived at, that the remain-
ing two questions must be answered in the negative. C Since the
crucial date of the commencement of the existence of the new
power is a question of fact and the executive government is no
better judge than the court in such matters, it would not be open
to the executive government to alter that fact by its arbitrary will
for the purpose of setting a limit to the retroactivity of recogni-
tion.58 Under the doctrine of judicial self-limitation, the courts
have refrained from deciding on ' political ' matters. But to
establish the fact of existence after the recognition has been
granted cannot be said to involve any political consequence, and
it may be within the competence of the court to conduct its
independent investigation. )
As regards other limitations, it is believed that retroactivity
is limited by the fact of the existence of the former regime. So
long as that regime has not been completely displaced, it, and not
the regime subsequently recognised, should be entitled to represent
the State as a whole.59 In Guaranty Trust Co. of New York v.
United States (1938) the United States Supreme Court held that
a notice of repudiation of liabilities given by a New York bank
to the Ambassador of the Provisional Government of Russia,
which was already defunct but continued to be recognised by the
United States, was binding on the Russian State. The limitation
period thus started to run, and the subsequently recognised
government lost the right of action owing to the expiration of
the period. The court said :
' We conclude that the recognition of the Soviet Government
left unaffected those legal consequences of the previous recogni-
tion of the Provisional Government and its representatives, which
attached to action taken here prior to the later recognition.'60
A similar decision by the Circuit Court of Appeals, Second
Circuit, in Lehigh Valley R. R. Co. v. State of Russia (1927) was
58 See, however, Article 7 of the Resolution of Institute of International Law,-
1936: 'Recognition de jure is retroactive in its effects from the date when
the new State actually began to exist as an independent State. It is desirable
that this date should be definitely indicated in the act of recognition ' (30
A.J.I.L., 1936, Supplement, p. 186. Italics added). Quaere, if different
recognising States indicate different dates, does it mean that the new State
' actually began to exist ' at different dates?
50 Below, p. 296.
6,1 (1938) 304 U.S. 126, 140-1.
184 Legal Effects of Recognition
cited and approved." The judgment in Guaranty Trust Co. of
New York v. United States was followed in Banco de Espana v.
Federal Reserve Bank of New York, same v. U.S. Lines Co.,
same v. Solomon.62 It was held that the sale of silver by the
Republican Government of Spain transferred a valid title, and
the claim of the Nationalist Government to ownership therefore
failed. A similar dispute arose in the English case, Government
of Spain v. The Chancery Lane Safe Deposit, Ltd., De Reding
and the Attorney-General and the State of Spain v. The same
U939).63
It seems that, except in the last two cases, the courts have
gone farther than the proposition that the effect of retroactivity
is limited by the existence of the previous regime, but have main-
tained that the limitation is set by the continued recognition of
an already defunct regime. Under the doctrine of judicial self-
limitation this may seem inevitable. But it is believed that the
continued recognition of a government which exercises no actual
power does no more than prevent the subsequently recognised
government from contesting in the court of the recognising State
the validity it has previously attributed to the acts of the defunct
government. It cannot mean, for example, that a treaty or other
arrangements made with the defunct government can be held as
internationally binding upon the State. Nor does the continued
recognition of the defunct government set a limit to the retro-
active validation of acts or laws of the new government, with
regard to matters within its actual control, even though at the
time such control may not have covered the entire extent of the
State territory."
Apart from the above limitations, recognition validates all
the past acts of the new regime, subject, of course, to all the con-
ditions for the application of foreign laws in national courts.
81 (1938) 304 U.S. 126. See 21 F. (2d) 396, Hudson, p. 120. To the same effect,
Russian Government v. Lehigh Valley R.R. Co. (1919), 293 F. 133, Hudson,
p. 89; Agency of Canadian Car and Foundry Co., Ltd. v. American Can Co.
(1918), 253 Fed. 152, (1919) 258 Fed. 363, Annual Digest, 1919-1922, Case
No. 14.
«3 (1939) 28 F. Supp. 958, (1940) 114 F. (2d.) 438, Annual Digest, 1938-1940,
Case No. 6.
«3 The Times, May 26, 1939; Annual Digest, 1941-1942, Case No. 7.
sl Dougherty v. Equitable Life Ass. Soc. (1934), 266 N.Y. 71, Hudson, pp. 152,
153-4; U.S. v. Belmont (1937), 301 U.S. 324, 330; U.S. v. Bank of N.Y.
and Trust Co. (1936), 296 U.S. 463, 478-9; R. v. Koschikiewicz, R. v. Ulatow-
ski (1948), 33 Cr. App. R. 41.
Retroactivity of Recognition 185
Thus previous acts of the new regime which seek to be given
extra-territorial effect,65 or which are prejudicial to acquired
rights,66 or contrary to the public policy of the forum,67 would
not be given effect in spite of the recognition. These limitations
are strictly not germane to the question of retroactivity of
recognition.
§ 3. Criticism of the Doctrine
As has been pointed out, the doctrine of retroactivity has to its
credit the advantages of ensuring legal continuity within the
State in which the revolution has taken place, of promoting
comity among nations, and of securing justice to individuals who
have unavoidably found themselves under the rule of the de facto
authority. It minimises the eruptive effect of the revolution and
bridges the gap created by the temporary abnormal state of affairs.
It makes possible the smooth working of the law as if uninter-
rupted by revolution.68 It provides a remedy, to some extent, for
the unreasonableness of ignoring the existence of powers on the
ground of non-recognition.
Despite such advantages, the result of the application of the
doctrine has not been altogether satisfactory. Firstly, it creates
a situation little calculated to promote legal certainty. Take, for
example, Luther v. Sagor (1921). As the case stands, the title
of the original owner was divested. But had the judgment been
pronounced before the recognition, that title would have been
confirmed.
Secondly, the fiction of retroactivity involves the danger of
putting the judiciary at variance with the political department.69
"Barclay v. Russell (1797), 3 Ves. Jun. 423, 424; Lehigh Valley R.R. Co.
v. State of Russia (1927), 21 F. (2d) 396, Hudson, p. 120; Vladikavkazsky
Rly. Co. v. N.Y. Trust Co. (1934), 263 N.Y. 369, Annual Digest, 1933-1934,
Case No. 27.
66 Resolution of Institute of International Law, 1936. Articles 7 (2) and 16,
30 A.I.I.L., 1936, Supplement, p. 186; Noel-Henry, op. cit., s. 156; De
Mayenne v. Joutel (1926), 55 J.D.I., 1928, p. 710.
87 See citations, above, n. 66. See also U.S. v. Belmont as held in the lower
court, (1937) 301 U.S. 324, 327; In re Bek Marmaischeff (1929), Annual
Digest, 1929-1930, Case No. 150; Moscow Fire Ins. Co. v. Bank of N.Y. and
Trust Co. (1939), 280 N.Y. 286, 314, quoted in U.S. v. Pink (1941), 315 U.S.
203, 222; Merilaid & Co. v. Chase Nat. Bank of City of N.Y. (1947), 71
N.Y.S. (2d) 377.
68 See Dougherty v. Equitable Life Ass. Soc. (1934), 266 N.Y. 71; 193 N.E.
897, Hudson, pp. 152, 154-5.
69 Note — Judicial Determination of the Status of Foreign Governments — 35
H.L.R., 1921-1922, p. 607.
186 Legal Effects of Recognition
For by relating recognition back to a time when the political
department had expressly refused to grant recognition, the court
would be in effect repudiating the refusal on the part of the
political department.70
This unsatisfactory state of affairs is, however, not due to
defects in the doctrine of retroactivity itself, but rather to the
circumstances which render that doctrine necessary. <C%he
doctrine is a fiction created to rectify the errors of another fiction,
namely, the fiction that a power does not exist where it does in
fact exist. So long as the latter fiction persists, the former is not
only necessary, but is even salutary, despite its many short-
comings. The doctrine can, no doubt, be dispensed with, either
if recognition is accorded immediately after the new power is
established, or if the courts have the power to take cognizance
of the fact of such existence, independently of political
recognition?}
The very idea that legal effect can be given to acts of previously
non-existent entities is fatal to the constitutivist contention. It
substantiates the declaratory view that, recognised or not, the
de facto power exists.71 Recognition does not ' create ' the legal
effects,72 either of the past, or of the future acts of the recognised
power. They have legal effects because of the existence of that
power. What recognition does, through the aid of the doctrine
of retroactivity, is, internationally, to open the channel for the
new power to settle questions created in the absence of diplomatic
relations, and, from the point of view of municipal law, to lift the
ban against taking cognizance by the courts of the existence of
the new power hitherto ignored.
70 See Hervey, op. cit., p. 110.
71 Declaratory writers maintain that retroactivity of recognition is possible
only under the declaratory theory (De Visscher, Les Gouvernements Etrangers
en Justice, 3 R.I., 1922, p. 149, at p. 151; Erich, loc. cit., n. 21, p. 15 above,
p. 466). For the same reason, Noel-Henry is opposed to the doctrine of
retroactivity (op. cit., s. 154).
72 Moore is opposed to the doctrjne on the ground that recognition should
have no effect whatsoever (he. cit., n. 52, p. 114 above, p. 431).
PART FOUR
MODES OF RECOGNITION
CHAPTER 14
MODES OF RECOGNITION
THE question of what constitutes an act of recognition is a
matter of great practical importance in determining
whether, in a given situation, recognition has been accorded. Hall
thinks that any act ' which clearly indicates intention ' may be
regarded as recognition.1 Since it is generally agreed that recogni-
tion may be implied as well as expressed,2 such a test is insufficient
because it is precisely the question of knowing whether in a
particular case a certain act is or is not indicative of the intention.
In order that an act may be a sufficient indication of the inten-
tion to recognise, there must be something inherent in the act itself
which warrants such an inference. When it can be established
that certain acts are of this character, the mere fact that any such
act has been done would justify the conclusion that recognition
has been intended. It would not be necessary to inquire whether
in so acting the intention was actually present in the mind of the
actor, or whether he expected or desired such an inference to be
drawn. In other words, the admission of implied recognition
would require that a measure of conclusiveness be given to
the outward expression, independently of the actual mental
conditions, of the actor. It would be illogical to demand
that in an implied recognition the intention of the recognising
State should be ascertained. The fact that a certain act is
being done is all the ascertainment that is necessary. To go
beyond that would be the negation of the notion of implied
recognition.
'Hall, p. 109.
2 Hall, p. 108 et seq.; Oppenheim, vol. 1, pp. 140-3; Moore, Digest, vol. I,
p. 73; Anzilotti, op. cit., n. 7, p. 14 above, vol. I, p. 170; Scelle, op. cit.,
n. 20, p. 15 above, vol. I, pp. 103-4; Lawrence, op. cit., n. 5, p. 14 above,
p. 87; Fauchille, op. cit., n. 24, p. 15 above, t. I, Pt. I, p. 325; Le Normand,
op. cit., n. 1, p. 14 above, p. 281; Keith's Wheaton, p. 56; Erich, loc. cit.,
n. 21, p. 15 above, p. 469; Institute of International Law, Resolution of 1936,
Articles 9, 14 (30 A.J.I.L., 1936, Supplement, p. 186). For the view that
recognition must be express, see Noel-Henry, op. cit., n. 29, p. 139 above,
s 88; Montevideo Convention, 1933, Article 7 (28 A.J.I.L., 1934, Supplement,
p. 76).
189
190 Modes of Recognition
The contrary argument is possible only if it be maintained
that no act can be deemed to be an act of recognition which is not
expressed in words. No writer has insisted upon such a narrow
interpretation. Professor Lauterpacht, who is opposed to implied
recognition, nevertheless regards as exceptions such acts as the
conclusion of a general bilateral treaty, the formal establishment
of diplomatic relations and the issuance of consular exequaturs
(and, in the case of belligerency, a proclamation of neutrality or
some such unequivocal act).3 These acts have been sanctioned
by long practice as reliable indications of recognition. A State
not wishing to recognise another is free to refrain from doing any
of these acts; but it would be self-contradictory, while doing the
act, to deny that recognition is intended.
As we have pointed out, the notion of implied recognition is
based upon the assumption that there are certain characteristics
in certain classes of acts which impel the implication of recogni-
tion. But what are these characteristics? It is the purpose of
this chapter to discover these characteristics, and, in the light
of the finding, to determine whether various acts imply
recognition.
The notion of implied recognition creates some logical
difficulties for the constitutive theory. If recognition may be
achieved by an act not intended by the recognising State, it would
mean that the latter may find itself burdened with international
obligations without its consent. Moreover, certain acts imply
recognition because they presuppose the existence of the body
recognised. It would be strange logic to argue that that existence
can be ' created ' by an act which presupposes it.
To declaratory writers, the notion of implied recognition gives
rise to no special difficulty. To them, recognition is the intimation
of a State's readiness to enter into full and formal political
relations with another, and, at the same time, serves as evidence
of the latter's existence. As a State is free to enter into various
degrees of relations with other States, it may consider any such
relations short of full political relations as not amounting to
recognition, although it need not deny the existence of the other
party as a State or government. This explains why it is possible
for States to argue that, in spite of having entered into relations
3 Lauterpacht pp. 405-6.
Modes of Recognition 191
with a new entity strongly evidential of the latter's existence,
no recognition has thereby been accorded. There is no
contradiction on the part of a State to conduct itself upon the
assumption of the existence of another, while denying it
* recognition '.*
The invitation to enter into formal political relations is
naturally subject to and dependent upon the intention of the
recognising State, but such an intention may be presumed in cases
where the recognising State enters forthwith into the relation
contemplated, such as the exchange of diplomatic representatives
or the conclusion of bipartite treaties. The act in question has
done what an express act of recognition would have intended
to do.
We shall now consider whether the following kinds of acts
may be regarded as modes of recognition, the test being whether
the intention to enter into political relations is inherent in the acts
themselves: express declaration; entering into bilateral treaties;
accrediting and receiving of diplomatic representatives; request
and issuance of consular exequaturs; participation in international
conferences, multilateral treaties, and international organisations;
and entering into relations officieuses.
§ 1. Express Declarations
An express announcement of recognition is definitive and con-
clusive, and removes all doubts as to the relation in which the
recognising State stands towards the recognised power. Express
recognition may be accomplished by direct communication to
the recognised power,5 or by public announcement by the recog-
4 Jaffe : ' Undoubtedly recognition asserts both the facts of another nation's
existence and the existence of relations with it, but non-recognition does
not necessarily deny either' (op. cit., n. 21, p. 15 above, p. 120). See
his criticism of Baty's argument that every entry into relations with a new
State constitutes recognition (ibid., pp. 120-1).
"See identic notes of the British, French and German representatives to
the Roumanian Government, February 20, 1880 (Moore, Digest, vol. I,
p. 114); British note to Poland, February 26, 1919 (Lauterpacht, p. 381, n. 1);
Soviet Union's communique to the Republic of Tuva (Taracouzio, The
Soviet Union and International Law, 1935, p. 19, n. 23); United States recog-
nition of Albania, 1922, Bulgaria, 1909, Egypt, 1922, Finland and Poland,
1919 (Hackworth, vol. I, pp. 198, 202, 209, 212, 217). For a summary of the
American practice, see ibid., pp. 167-8.
192 Modes of Recognition
nising State,6 or a notification to a third State by the recognising
State,7 or by agreement between two or more recognising States.8
The express form of recognition makes for clarity, and brings the
fact within the knowledge of the general public. Express recog-
nition is often preferred by the recognised power as being more
reassuring.9 Canning, however, thought that implied recognition
is ' better calculated for the advantage and dignity of the State
to be recognised \10 The true reason for this preference is
probably that it is less conspicuous, and therefore less likely to
offend the susceptibilities of the parent or other States.11
§ 2. Bilateral Treaties
It is generally agreed that the conclusion of bilateral treaties
constitutes recognition.12 Sir William Scott held in The Helena
(1801) that the Bey of Algiers must be regarded as a sovereign
on account of his treaty relations with Great Britain.13 In 1822,
the United States contended that Spain had accorded recognition
to her American Colonies by concluding with them ' treaties
equivalent to an acknowledgement of independence '.ld The
International Association of the Congo was recognised by the
majority of Powers by the conclusion of conventions.15 The
"The United States recognised the International Association of the Congo
by the declaration of April 22, 1884 (Moore, Digest, vol. I, p. 117); Britain
recognised same in December by an exchange of declarations (ibid., p. 118);
The United States recognised the Baltic States in 1922, and the Czechoslovak
National Council in 1918 by public announcements (Hackworth, vol. I,
pp. 201, 203). [The United States adopted the same procedure to recognise
Israel (18 State Dept., Bulletin, 1948, p. 673; 20ibid., 1949, p. 205); Korea
(20 ibid., 1949, pp. 59-60); Transjordan (20 ibid., p. 205); Viet Nam, Laos and
Cambodia (United States Information Service, Daily Wireless Bulletin,
No. 1200, February 8, 1950). British recognition of Korea (Foreign Office,
Press Release, January 19, 1949) and Israel (ibid., January 29, 1949) was
also accorded by declaration.]
7 Recognition of Iceland by Denmark, 1918 (Hackworth, vol. I, p. 213).
8 Below, pp. 221-2.
* Morier and Ward to Canning, April 10, 1825 (Webster, op. cit., n. 66, p. 45
above, vol. I, p. 469).
10 Ibid., p. 291 above, p. 45, n. 66.
11 Lauterpacht, pp. 378-9.
12Hershey, Essentials of International Law and Organisation, 1927, p. 200;
Gemma, Les Gouvernements de Fait, 4 Hague Recueil, 1924, p. 297, at
p. 369; Lauterpacht, p. 375; Hyde, vol. I, p. 150.
13 4 C. Rob. 3, 5.
14 Moore, Digest, vol. I, p. 88.
15 See Conventions with Germany (75 B.F.S.P., 1883-1884, p. 354); Italy (ibid;,
p. 633); Netherlands (ibid., p. 322); Denmark (76 B.F.S.P., 1884-1885, p. 586);
France (ibid., p. 578); Portugal (ibid., p. 583); Russia (ibid., p. 1010); Spain
(ibid., p. 575); Sweden and Norway (ibid., p. 580). See also Reeves, The
Origin of the Congo Free State, Considered from the Standpoint of Inter*
national Law, 3 A.J.I.L., 1909, p. 99.
Modes of Recognition 193
Turkish Republican Government was recognised by the United
States by the signing of the treaties of August 6, 1923.18 The
recognition of the Soviet Government by many States was also
achieved by means of bilateral conventions.17
There have been numerous cases in which States, although
they have entered into agreements with new entities, have, never-
theless, insisted that no recognition had been accorded. The
difficulty of a constitutivist explanation is obvious, and has been
frankly admitted by Professor Lauterpacht." His defence is that,
in the absence of general recognition, a new entity may be per-
mitted to enjoy rights ' to the extent to which they are conceded
by other States '. Therefore, he maintains, the existing State or
States, by entering into agreements with the new entity, admit its
treaty-making capacity while refusing recognition for any other
purpose.19 This would mean that there can be an intermediate
situation between the total absence of personality because of non-
recognition and the total enjoyment of capacity in consequence
of recognition. It is not clear how such an argument can be
brought into harmony with the constitutive theory.
The declaratory theory is fortunately spared this dilemma.
Inasmuch as recognition is regarded as an invitation to enter into
political relations, there is no inconsistency in. denying recogni-
tion, while entering into treaty engagements with the new entity.20
The conclusion of treaties would imply recognition only when it
implies, or necessitates, or is actually implemented by the estab-
lishment of political relations. In other words, very much depends
upon the character of the treaty in question and the circumstances
under which it is concluded.
As the term ' treaty ' is here used in its generic sense, it includes
"Hackworth, vol. I, p. 312.
17 Great Britain, Trade Agreement, March- 16, 1921 (114 B.F.S.P., 1921, p. 373);
Persia, Treaty of February 26, 1921 (ibid., p. 901); Germany, Treaty of
April 16, 1922 (118 B.F.S.P., 1923, p. 586); Turkey, Treaty of March 16,
1921 (ibid., p. 990); Italy, Treaty of February 7, 1924 (120 B.F.S.P., 1924,
p. 659); United States, exchange of notes, November 16, 1933 (Hackworth,
vol. I, p. 304). For a list of other treaties, see Taracouzio, op. cit., pp. 256-64.
The exact date of the recognition of the Soviet Union by the United States
is. however, controversial (below, pp. 195, 208, n. 88).
18 Lauterpacht, p. 375, n. 1.
"Ibid., p. 375. [See also, in connexion with Germany, Green, European
Recovery; Constitutional and Legal Problems, 2 World Affairs (New Series),
1948, p. 373, at p. 378, and The New Regime in Western Germany, 3 World
Affairs (New Series), 1949, p. 368 at p. 377.]
20 See Hudson, Recognition and Multilateral Treaties, 23, A.J.I.L., 1929, p. 126,
at p. 128.
194 Modes of Recognition
all forms of international contractual relations. The more formal
the agreement, the greater the presumption of recognition to
which it would give rise. In 1865 Bismarck discreetly tried to
avoid the consequence of recognising Italy by insisting upon
signing a protocol instead of a treaty with her.21 This distinction
is, however, not always observed by other States. The British
Government considered the conclusion of a trade agreement with
Soviet Russia as an act of recognition, although the earlier agree-
ment of February 12, 1920,22 which in point of form belonged to
the same category, was not so regarded. The recognition of the
Soviet Government by the United States was effected by the least
formal method of an exchange of notes.
The question whether a treaty constitutes an act of recogni-
tion may often depend upon its subject matter. Generally
speaking, a treaty regulating, more or less permanently, relations
of a general character between States usually constitutes an act
of recognition.23 A temporary local arrangement with an un-
recognised body is compatible with the status of a belligerent
community, and need not even presuppose the existence of a State
or government. Some treaties deal with non-political matters,
and they can be regarded as no more than business transactions.21
But just where the line should be drawn between permanent and
temporary, between general and local, between important and
unimportant obligations, there does not seem to be any well-
defined rule. The Soviet-Hungarian Agreement of July 28,
1920 ss and the Soviet-French Agreement of 1920,26 contained
important political clauses equivalent to a treaty of non-inter-
vention and non-aggression. Yet neither France nor Hungary
considered that recognition was implied therein.
The question may also arise: at what stage of the treaty-
making process must recognition be regarded as accomplished?
31 Lauterpacht, p. 375, n. 1.
22 Agreement for the exchange of prisoners of war (113 B.F.S.P., 1920, p. 428).
Similar agreements were entered into between the Soviet Government and
other non-recognising governments (Jaffe, op. cit., pp. 114-5; Taracouzio,
op. cit., p. 255).
23 Lauterpacht, p. 406.
21 Agreement between the Soviet Union and ' Manchukuo ' concerning the
cession of Soviet rights in the Chinese Eastern Rly„ March 23, 1935, seems
to belong to this category. For text of the Agreement, see 30 A.J.I.L., 1936,
Supplement, p. 85. Cf. Lauterpacht, p. 376; Langer, op. cit., n. 28, p. 60
above, pp. 123-4.
25 Lauterpacht, p. 377.
26 Jaffe, op. cit., p. 115.
Modes of Recognition 195
The exchange of ratifications is necessarily a sufficient indication
of recognition.27 As to stages prior to that, the indication is not
so certain. The opinion has, however, been widely held that the
signing of the treaty is also sufficient to indicate recognition,
regardless of the eventual validity of the treaty.28 Some writers
have even gone so far as to assert that the mere entering into
negotiations with a new entity for the purpose of concluding a
treaty, and, indeed, the mere appointment of agents for that
purpose, imply recognition.29 The assertion is not altogether un-
supported by precedents.30 The logic is extremely tempting to
a constitutive writer, as it is difficult to explain how it is possible
to conduct negotiations with someone who does not exist.31 The
British Government, however, refused to regard the Soviet
Government as recognised, although it had received the Soviet
negotiator for the Trade Agreement. In denying recognition,
it nevertheless admitted the fact that ' that which Monsieur
Krassin represents in this country is a State Government of
Russia '.32 Likewise, President F. D. Roosevelt maintained that
the official conversations between himself and M. Litvinov did
not constitute recognition, which did not come about until the
termination of their conversations.33 But it must not be inferred
from this statement that, in his opinion, the Soviet Government
prior to that last moment had no existence as a government. That
fact had been clearly conceded by his correspondence with
M. Kalinin, President of the All Union Central Executive Com-
mittee of the Union of Soviet Socialist Republics.34 This was in
27 Both Bismarck and the Italian Government agreed in 1865 that the exchange
of ratifications of the treaty between Italy and the States of the Zollverein
implied recognition (Fontes Juris Gentium, Ser. B, sectio I, Tomus I, Pars
I, 148).
28 This opinion has been held by the American State Department with regard
to the treaties with Turkey (Hackworth, vol. I, p. 318), China (ibid.),
and Mexico (ibid., p. 261). In this last instance, the Mexican Government
expressed concurrence in this view (Lauterpacht, p. 378, n. 1). See also
Republic of China v. Merchants' Fire Ass. Corp. of N.Y. (1929), above,
p. 44, n. 65, p. 137. [See treaty recognising Philippine Republic, p. 46 above.]
20 Fauchille, op. cit„ t. I, Pt. I, 325; Moore, Digest, vol. I, p. 73.
30 Paraguay was recognised by the United States on April 27, 1852, by the
issuance to the American charge1 d'affaires at Buenos Aires of a full power
to negotiate a treaty with the Paraguayan Government (Moore, Digest,
vol. I, p. 91). similarly, United States recognition of Greece, November 7,
1837 (jbid., p. 112); of Ecuador, June 15, 1838 (ibid., p. 90); Opinion of
State Department, 1927 (Hackworth, vol. I, p. 354).
31 Lauterpacht, p. 377.
32 Luther v. Sagor [1921], 1 K.B. 456.
33 Briggs, Law of Nations, Cases, Documents and Notes, 1938, p. 69.
31 Hackworth, vol. I, p. 303.
196 Modes of Recognition
consonance with the general American practice.35 The conclu-
sion from these examples seems to be that, although legal capacity
of the parties must be presumed by entering into negotiations,
recognition cannot be achieved until the conclusion of the treaty.
Finally, it may be said that the conclusion of a bilateral
treaty regulating more or less permanently matters of a general
and political nature gives rise to the presumption of a State's
willingness to deal with another in normal political relations.
The solemnity of form and the importance of the subject matter
add weight to such a presumption. The presumption is justified
by the fact that the conclusion of the treaty itself is the very
substance of the political relations contemplated. Agreements
of a lesser formality, or dealing with temporary or local matters,
which are no more than mere business transactions, or the mere
entering into negotiations for such agreements, although usually
sufficient to indicate that a new entity possesses capacity for
international intercourse, may not imply the intention to
recognise it.
§ 3. Exchange of Diplomatic Representatives
That the exchange of diplomatic representatives constitutes
recognition is in principle open to less dispute than any other
form of implied recognition.36 As evidence of the existence of the
power recognised, it is irrefutable. There cannot be an exchange
of diplomatic representatives with a foreign State without
presuming its existence.37 As an expression of the intention to
35 See statement of State Department in Salimoff v. Standard Oil Co. of New
York (1933), 262 N.Y. 220, 224.
36 See United States recognition of Colombia, June 17, 1822 (Moore, Digest,
vol. I, p. 90); of the Government of Buenos Aires, January 27, 1823 {ibid.,
pp. 90-1); of Texas, March 7, 1937 {ibid., p. 101); British recognition of
Poland, February 26, 1919 (Lauterpacht, p. 381, n. 1, and other cases cited
therein; Fontes Juris Gentium, Ser. B, Sectio I, Tomus I, Pars I, 144-5, 169,
171); United States recognition of the Federation of Central American
States, August 4, 1824, and, later, of the separate members of the Federation
and of Peru (Moore, Digest, vol. I, p. 92). [Similarly, American recog-
nition of Pakistan (State Dept., Press Release, No. 656, August 14, 1947)
and Ceylon {ibid., No. 323, April 26, 1948).]
37 But see the exceptional case of Cuba in 1906. Foreign diplomatic repre-
sentatives continued to function, when the country was occupied and ruled
by the United States (Hackworth, vol. I, pp. 149-50). [Similarly, foreign
Ambassadors remained at Nanking in 1949 after that city had been occupied
by Chinese communists, although the communist authority had not been
recognised (Mr. Attlee, House of Commons, May 5, 1949, Pari. Debates,
vol. 464, col. 1351).]
Modes of Recognition 197
enter into political relations, the presumption is obviously
similarly absolute.
There seemed to be some confusion on the part of the United
States regarding its position with respect to Afghanistan in 1921.
On July 26, 1921, an Afghan Mission was received by the
President of the United States who, however, intimated that the
creation of a diplomatic mission must be delayed. In these
circumstances the State Department was uncertain whether
recognition had taken place.38 The confusion probably arose
from the mistaken view that the recognition had been nullified by
the subsequent failure to send a diplomatic mission.
Perhaps the view that the exchange of diplomatic representa-
tives is an absolute indication of recognition does not entirely
apply in the case of India. India entered into international
relations with other powers after the signing of the Versailles
Treaty. For many years, foreign countries have exchanged
resident representatives with her, styled as ' commissioners ',39
who were diplomats in everything but name. Before the transfer
of power on August 15, 1947, several States had exchanged
regular diplomatic representatives with her.10 Did India become
an independent State at the time of the accrediting of the com-
missioners or the ambassadors? Probably the case of India is
unique, and must be regarded as an exception to the general rule."
Regarding the precise moment at which recognition may be
regarded as taking place, Professor Smith has cited a minor but
interesting case in which the question was whether the date of
recognition should be reckoned from the dispatch of the letters of
38 See contradictory views in its communications to the U.S. charge1 d'affaires
at Persia and to Senator Ashurst (Hackworth, vol. I, pp. 195-6).
39 China and the United States had commissioners residing in New Delhi (Indian
Year Book, 1947, p. 585). Indian representatives in China and the United
States were called ' Agents General ' (ibid., p. 739).
40 The Chinese Ambassador was appointed on February 25, 1947 (India News,
vol. VII, No. 9, February 27, 1947); the Netherlands and Nepal decided to
exchange ambassadors with India on April 17 and June 12, respectively
(ibid., No. 17, April 24; vol. VIII, No. 2, June 12); the Indian Ambassadress
to the Soviet Union was appointed on June 25 (ibid., vol. VIII, No. 4,
June 26); the American Ambassador to India was appointed on April 9,
and presented his credentials on July 1 (ibid., vol. VIII, No. 5, July 3), [the
agreement to appoint an Ambassador having been reached on October 23,
1946 (Dept. 6f State, Press Release, No. 753, October 23, 1946).]
41 [On September 18, 1947, the United States announced that the Consulate
General at Rangoon was being raised to an Embassy (State Dept., Press
Release, No. 749, September 18, 1947), although Burma did not become
independent of Great Britain until January 4, 1948 (Burma Independence Act,
1947 (11 Geo. 6, Ch. 3, s. 1)).]
198 Modes of Recognition
credence, or from their presentation to the head of the new State.
The Queen's Advocate was unable to give a direct answer. The
answer given by Professor Smith is that recognition dates ' from
the first public act in which it is either expressed or necessarily
implied '."
[The relations between Great Britain and Israel throw an
interesting sidelight on the effect of the accrediting of diplomatic
representatives. On January 29, 1949, Great Britain ' decided
to accord de facto recognition to the Government of Israel '.42a
This was the first intimation of British recognition of the State of
Israel. On May 13, 1949, it was announced that the two govern-
ments had ' agreed to raise the status of their representatives . . .
to that of fully accredited Ministers '. It was pointed out at the
same time that this agreement in no way affected the ' basis of
the relationship between the two countries '.42b The first Israeli
Minister was accredited to King George VI,420 although the State
of Israel was still only recognised de facto.]
§ 4. Consuls and Exequaturs
The office of a consul being local and non-political,43 the
appointment of a consul by a State to reside in a territory under
the control of an unrecognised regime, or the acquiescence by a
State of an agent of an unrecognised regime to perform consular
functions within the territories of that State does not necessarily
involve recognition.44 This applies equally to situations where
the unrecognised regime is still an insurgent community.45 An
42 Smith, vol. I, pp. 245-7. See also below, p. 219, n. 43.
42a [Foreign Office Press Release, January 29, 1949.]
42b [Israel Foreign Office, FO/T/150/157s4, January 6, 1950.]
120 [Israeli first book of protocol, entry No. 9.]
43 Hall, pp. 371-2; Oppenheim, vol. I, pp. 743, 749; Stuart, American Diplomatic
and Consular Practice, 1936, Ch. XVIII.
44 Lauterpacht, pp. 383-4. See Mr. J. Herstlet's memorandum regarding the
recognition of the Fiji Government (Smith, vol. I, pp. 250-8). As to United
States practice in favour of this view, see Moore, Digest, vol. I, pp. 91, 132;
Hackworth, vol. I, pp. 331, 332-3; vol. 4, p. 684 et seq. See also Harvard
Research, Consuls, Article 6 (a) (b) (26 A.J.I.L., 1932, Supplement, p. 194).
45 British consuls were sent to Buenos Aires in 1811, before the recognition
of the belligerency of the latter. Note, however, that the exequatur was
requested from the Spanish Government (Smith, vol. I, pp. 117-8). Appoint-
ment of consuls addressed to Buenos Aires did not take place until 1823
(ibid., pp. 134-9). In June, 1810, an 'Agent for Seamen and Commerce in
the Port of Buenos Aires' was appointed by the United States. In April,
1811, it was replaced by the office of a 'Consul for Buenos Aires and Ports
below it on the River Plate ' (Paxson, op. cit., n. 3, p. 79 above, p. 109). There
was, however, no intention of recognition {ibid., p. 111). See also Hall, p. 377;
Harvard Research, Consuls, loc. cit. p. 239. In 1912, the United States
Modes of Recognition 199
American law expressly provides for the performance of consular
functions by agents of ' Government, factions or body of
insurgents within a country with which the United States is at
peace, which Government, faction or body of insurgents may or
may not have been recognised by the United States as a
Government '.d6
There is, however, a divergence of view as to the question
whether the request of consular exequaturs from an unrecognised
regime or the grant of consular exequaturs to appointees of such
a regime constitutes recognition. Moore thinks that the act of
soliciting for or receiving from the government of a certain
country an exequatur for a consular officer at a particular place
' is not a conclusive recognition of such country's sovereignty
over the place in question '. The request for an exequatur, he
says, concerns merely the performance of consular duties by a
United States officer with the permission of the authority in actual
possession and indicates neither approval nor confirmation of the
right of possession.47 In 1911 the United States, while refusing
to recognise the annexation of the Congo by Belgium, neverthe-
less applied for and received an exequatur from the Belgian
Government for an American consular officer in Congo. The
State Department said that it was ' the rule and custom ' to ask
consular recognition by the de facto authorities, ' it not being a
question of de jure determination '.4S
On the other hand, the request by one government to another
to treat its officials in a manner prescribed by international law,
or the assurance given to treat them in such a manner, inevitably
involves an undertaking to deal with each other in a friendly
way. A consular officer operating without exequatur, operates
Government remonstrated with the rebel commander in Mexico for dis-
allowing the functioning of American consuls in his territory (Hackworth,
vol. 4, pp. 684-6). For activities of United States consuls in territory
under Franco during the Spanish Civil War, 1936-1939, see ibid., pp. 688-9.
[In May, 1949, Mr. Attlee announced that British consuls in communist-
occupied China had made ' local contacts ', although the communist authori-
ties were not recognised in any way (Pari. Debates, vol. 464, col. 1351).]
On many occasions, agents of insurgent bodies were allowed to perform
consular functions in the United States. For the case of agents of Maxi-
milian, see Dana's Wheaton, s. 76, n. 41. For more recent cases, see
Hackworth, vol. 4, pp. 691-701.
"Act of June 15, 1917, 40 Stat. 226; 22 U.S.C. ss. 233, 235; Hackworth,
vol. 4, p. 693.
47 Moore. Digest, vol. 5, p. 13.
48 Hackworth, vol. 4, p. 684.
200 Modes of Recognition
only by the sufferance of the territorial authority, and not
strictly according to legal right.49 It is only after the granting of
an exequatur that a State becomes legally bound by any inter-
national duties with respect to consuls. The majority opinion,50
with the support of the overwhelming weight of practice,51 points
unmistakably to the conclusion that the receipt and issue of a
consular exequatur imply recognition. After proclaiming a
protectorate over Czechoslovakia in 1939, the German Govern-
ment demanded that foreign consuls in Czechoslovakia should
apply for new exequaturs from the German Government and
insisted that a request for an exequatur must be regarded as
tantamount to recognition of German sovereignty over the area
in question. The United States Government did not contest the
correctness of the German theory, and the exequatur was not
issued.52 The British Government applied for new exequaturs
for British consuls in Prague, Bratislava and Durazzo, admitting
that it implied de facto recognition of the existing position in
49 Consular status is acquired only when a person is both commissioned and
recognised (Harvard Research, Consuls, Article 3, loc. cit., pp. 231, 240).
An unrecognised government which permits consular officers without exequa-
turs to operate within its territory is entitled to terminate such operation
whenever it pleases. See dismissal of foreign consuls from the Confederacy
.». (Fontes Juris Gentium, Ser. B, Sectio I, Tomus I, Pars I, 146-7; Bonham,
British Consuls in the Confederacy, 1911, pp. 18, 232).
50 Hall, p. 109; Lauterpacht, pp. 384-7; Harvard Research, Consuls, loc. cit.,
p. 240; Keith's Wheaton, p. 56; Le Normand, op. cit., n. 1, p. 14 above,
p. 281.
51 For a review of British and American cases, see Lauterpacht, pp. 385-7.
In refusing to grant an exequatur to D. C. De Forest, who applied for
recognition as Consul-General of the United Provinces of South America
in 1818, Secretary Adams wrote: ' . . . the exequatur for a consul-general
can obviously not be granted without recognising the authority from whom
his appointment proceeds as sovereign ' (Adams to the President, January 28,
1819, Moore, Digest, vol. I, p. 79). In the following cases recognition was
accomplished by the issue of exequaturs by the United States to consuls
of the new entity: Venezuela, February 25, 1835 (Moore, Digest, vol. I,
p. 90); Uruguay, January 25, 1836 (ibid., 91); Guatemala, April 5, 1844
(ibid., p. 92); Belgium, January 6, 1832 (ibid., p. 110). The United States
refused to grant exequaturs to appointees of the following unrecognised
regimes: Albanian Government, October 2, 1924 (Hackworth, vol. I, p. 282);
Estonian Government, September 11, 1920 (ibid., p. 330); Ecuadoran
Government, July 28, 1925 (ibid., p. 332). The British Foreign Secretary,
Mr. Eden, stated in the House of Commons, November 8, 1937, regarding
relations with Franco Spain : ' But the appointment of new Consuls with
Commissions from His Majesty the King and the grant to them of an
exequatur by the authorities at Salamanca would have implied a measure of
recognition of these authorities ' (Pari. Deb., H.C., 5th Ser., vol. 328, col. 1386).
In 1924 a new Chilean Government issued exequaturs for two American Vice-
Consuls, which had been requested from its predecessor. The United States
Government made the reservation that the acceptance of such exequaturs
did not constitute recognition (Hackworth, vol. I, p. 331).
*2 Hackworth, vol. 4, pp. 689-90.
Modes of Recognition 201
those areas.53 The same policy was pursued by Germany in
Danzig and Poland.54
§ 5. International Conferences, Multilateral Treaties,
and International Organisations
The participation of States in international conferences, multi-
lateral treaties and international organisations may be regarded
as three successive stages in the integration of international
society. The bonds between participating States become stronger
as they advance from the first stage to the third. This degree of
intimacy bears direct relationship with the presumption of
recognition.
International Conferences
Participation in an international conference is to a multi-
lateral treaty what negotiation is to a bilateral treaty. If the
mere entering into negotiations for a bilateral treaty does not
constitute recognition,55 for the same reason, participation in
international conferences may not be considered as constituting
recognition. A different view seems to be held by some writers.
Fauchille, for instance, maintains that the independence of
the Congo was recognised by ' son admission a la discussion
et au vote de I'acte general de la conference de Berlin, 26
fevrier 1885 \56 Temperley adopts the date of participation in the
Peace Conference as the date of the recognition of Poland, the
Serb-Croat-Slovene State and Czechoslovakia.57 But neither of
these writers is very firm in his view. Fauchille does not seem
to consider the admission into discussion as alone sufficient to
indicate recognition. The participation by the Congo in the
General Act really amounted to the signing of a multilateral
treaty which may be regarded as constituting recognition.58
Temperley, too, is not definite. He is not at all indisposed to
accept other dates, such as the dates of individual acts of States
S3 Pari. Deb., H.C., 5th Ser., vol. 347, cols. 961, 962; vol. 348, col. 1786; vol.
352, col. 1755.
51 Hackworth, vol. 4, pp. 690-1.
35 Above, pp. 194-6.
56 Fauchille, op. cit., t. I, Pt. I, p. 325.
37 Temperley, History of the Peace Conference of Paris, 1920, vol. 5, pp. 158-9.
*" For the view that the recognition of the Congo was accomplished through
bilateral conventions, see above, p. 192.
202 Modes of Recognition
or the date of the signing of the Treaty of June 28, 1919, as
possible alternatives.
(JThe preponderant view is that the mere participation in an
international conference by an unrecognised body does not
warrant the implication of its recognition by other participants.59
The practice of States, especially the United States, is decidedly
in its favour. In participating in numerous international confer-
ences in which unrecognised governments were represented, the
United States consistently maintained its position that no recogni-
tion was involved.60 She has, however, been uncertain whether
it was safe to come to the conference without reservation. On
one occasion she hastened to make a statement that no recogni-
tion was implied in participating in the conference.61 On another
occasion she took the view that no reservation was necessary,
save in the case where it was necessary to sign documents together
with unrecognised governments^6^ It seems to show that in the
opinion of the United States Government, the signature of the
documents, such as a general act, of a conference is equivalent
to signing a treaty, so far as the question of recognition is
concerned^ Greater caution was therefore exercised where the
international conference resulted in the conclusion of multipartite
treaties.
Another distinction discernible in the American practice is
that greater caution has been exercised in the case where the
59 Lauterpacht, p. 380; Hudson, loc. cit., n. 20, above, p. 129.
60 In the following international conferences, the United States took part
along with the Soviet Union, then still unrecognised by the United States:
(a) Universal Postal Congress, with Convention signed on August 28, 1924
(L.N.T.S.XL, 19), (b) European Conference on the Measurement of Vessels
Employed in Inland Navigation, with convention signed on November 27,
1925 (L.N.T.S.LXVII, 63), (c) International Sanitary Conference, with Con-
vention signed on June 21, 1926 (L.N.T.S.LXXVIII, 229), (d) Economic Con-
ference at Geneva, 1927 (Hudson, loc. cit., p. 129), (e) League of Nations
Preparatory Commission of the Disarmament Conference, March, 1928
{ibid.), (f) Meeting of Government Experts on Double Taxation and Tax
Evasion, October, 1928 (ibid.).
In the following international conferences, the United States took part
along with other unrecognised governments: (a) Child Welfare Congress,
1924, with the unrecognised Chilean Government (Hackworth, vol. I,
pp. 346-7), (b) Bolivar Congress, 1926, with the unrecognised Nicaraguan
and Ecuadoran Governments (ibid., p. 347).
Colombia was represented in the Fourth International Conference of
American States, in 1910, along with Panama which she did not recognise,
and several conventions were signed by both (Hudson, loc. cit., pp. 129-30).
61 The United States delegate was instructed to use an informal note in address-
ing the unrecognised Chilean Government when the Child Welfare Congress
took place at Santiago, 1924 (Hackworth, vol. I, p. 347).
62 Sec. Kellogg to South at the Bolivar Congress, June 16, 1926 (ibid.).
Modes of Recognition 203
non-recognising State and the unrecognised power stand towards
each other in relations closer than those of mere fellow-
participants. Thus, in the case of the Child Welfare Congress
1924 reservations were considered necessary, probably because
the unrecognised government was the government of the host
State." When the United States intended to play host to the
Universal Postal Congress of 1929, the Secretary of State declared
that no invitation could be extended to the Soviet Union.61 Such
a precaution was obviously unnecessary, seeing that the United
States had already taken part in inviting the Soviet Union to
adhere to the Kellogg Pact in the previous year.65 In fact the
precedent does not seem to have been followed. In 1933
President Roosevelt extended an invitation to the Soviet Union
to take part in the Disarmament Conference and the International
Monetary and Economic Conference.66
[In 1945, however, no invitation to attend the United Nations
Conference on International Organisation at San Francisco was
sent to Poland. By the Protocol of the Yalta Conference, 1945,661
the Governments of the Soviet Union, the United Kingdom and
the United States resolved upon the reorganisation of the then
existing Polish Provisional Government. This reorganisation had
not been effected by the time of the Conference, and the existing
Government was still unrecognised by the United Kingdom, the
United States and other participants. After debate it was decided
that no invitation should be sent to the Polish Government. 661>
Space was, however, left in the text of the Charter for a Polish
signature to be appended.660 After this Government had been
recognised by the United Kingdom and the United States, the
Polish representative signed the Charter.66d]
/A"s a matter of theory, there is no reason why co-participation
in an international conference should imply recognition^ It may
raise some difficulty, perhaps, from the constitutivist point of
63 Hackworth, vol. I, pp. 346-7.
ei-Ibid., p. 347. The Congress was eventually held in London, both the United
States and the Soviet Union taking part (L.N.T.S., CII, 245).
65 Hudson, loc. cit., pp. 126-8.
66 Hackworth, vol. I, p. 346, n.
663 [U.N. Doc. 30, DC/5 (1), April 27, 1945, pp. 13-17 (UNCIO Documents,
vol. 5, pp. 93-97).]
66»> [Cmd. 7088 (1947).]
«6C [U.N. Doc. 1213, ST/23, June 28, 1945, p. 1 (UNCIO Documents, vol. 5,
p. 305.]
66d [Goodrich and Hambro, Charter of the United Nations, 1949, p. 124; Kelsen,
Law of the United Nations, 1950, p. 8.]
U-
204 Modes of Recognition
view, since to admit the representative capacity of the agent is
hardly compatible with the denial of the existence of the principal.
Even so, this consideration need not have arisen in the case of
conferences of a technical or economic nature, in which partici-
pants need not be sovereign States in the strict sense of the word.
From the point of view of the declaratory theory, participation
in an international conference is at most a preliminary step in
exploring the possibilities of closer relations. It cannot itself be
conclusive as an invitation to enter into such relations. There-
fore no recognition can be implied in the mere participation by
unrecognised powers in international conferences. The fear of
the implication would needlessly impair the usefulness of the
conferences.67
While reservations by non-recognising States participating in
international conferences may often seem tautologous, it would
be justifiable, however, for them to prevent unrecognised bodies
from being included in a conference or to abstain from participat-
ing in it themselves, if that unrecognised body had objectively no
existence as a State, or if it proved exceedingly distasteful.68 The
object is not so much to prevent the implication of recognition,
as to protest against being ranged with non-sovereign bodies or
to show undisguised displeasure towards the unrecognised body.
Multilateral Treaties
Participation in multilateral treaties may assume either of the
two forms: signature or adherence. It is believed that the
simultaneous signing of a treaty gives rise to a stronger presump-
tion of recognition than the subsequent adherence to it_)
vln the question of adherence, a distinction must be drawn
between ' open ' and ' closed ' conventions. Adherence to open
conventions is entirely beyond the control of other participating
States. It is unfair to assume that recognition can be effected
by an unrecognised body through its own unilateral action^
The United States did not consider the adherence of the Soviet
" Hudson, he. cit., p. 129; Lauterpacht, p. 380.
""The United States boycotted the Genoa Conference of 1922 on this ground
(Hackworth, vol. I, p. 301).
" See this distinction made by Sec. Kellogg (Hackworth, vol. I, p. 354).
70 Ibid. See the adherence of the ' Slovak State ' on June 17, 1939, to the
Universal Postal Convention of 1934 (Langer, op. cit., p. 60 above, p. 233).
Modes of Recognition 205
Government to the International Office of Public Hygiene in
1926 71 or to the Kellogg Pact in 1928 72 as implying recognition
by other participants. It was the view of the United States that
this position is unaffected by the fact that a signatory State
happens to act as depository of instruments of adherence.73 A
depository State is bound to receive impartially the adherence of
actual States unrecognised by it. But it would probably be
within its rights to reject the adherence of a body with no
semblance of statehood. This interpretation must be placed upon
the recommendations of the Advisory Committee of the League
of Nations on June 3, 1933, in which it was suggested that the
depository States for open conventions should consult the con-
tracting parties whether to accept the adherence of ' Manchukuo ',
and that the Secretary-General of the League could not accept any
accession from ' Manchukuo ' to conventions concluded under
the auspices of the League.71
/Since, in closed conventions, adherence cannot be effected
without the consent of the original signatories, the presumption
for recognition is consequently stronger than in the case of
adherence to open conventions} Thus, Armenia's claim that by
accession to the Treaty of Sevres, August 10, 1920, she was
impliedly recognised by all the other signatories was not
questioned by the League Committee on the Admission of New
Members.75 The League of Nations Advisory Committee, in view
of the non-recognition of ' Manchukuo ', advised the Assembly
not to allow adherence to closed conventions by ' Manchukuo Vs
The United States, however, consented to the adherence of the
Soviet Government to the Treaty of February 9, 1920, concerning
71 Hackworth, vol. I, p. 352.
72 Ibid., p. 353. But see also, below, pp. 207-8, 210. In an instruction of
July 26, 1931, to the United States Minister in Switzerland, the Acting Secre-
tary of State stated that the implication of recognition by the adherence of an
unrecognised regime to an open convention ' appears to be too tenuous to
warrant even an explanatory declaration or reservation '. But immediately
following, he made a somewhat contradictory remark that, ' when the United
States signs a convention which is left open for subsequent signature ', a
reservation on the question of recognition would be necessary (U.S. For.
Rel. 1931 (I) 674).
73 Hackworth, vol. I, p. 354.
74 Ibid., p. 336.
75 L.N. Records of 1st Assembly, 1920, Plenary Meetings, 164. Armenia
acceded to that treaty by signing a protocol with other signatories (113
B.F.S.P., 1920, p. 873).
76 Hackworth, vol. I, p. 336.
206 Modes of Recognition
Spitsbergen, claiming that no recognition could be implied
therein."
In so far as adherence to closed conventions is subject to the
assent of all signatories, it stands to reason that such adherence
should be governed by the rules regarding the simultaneous
signing of treaties by unrecognised regimes. This applies to cases
where, although the convention in question is an open one, the
signatories have positively given their assent to the adherence,78
and also to cases where a treaty to which the unrecognised regime
is a party is adhered to subsequently by the non-recognising
State.79
1/ ( How far, then, does simultaneous signing of a multilateral
treaty imply recognition? To answer this question distinctions
must be drawn between political and non-political treaties,
between treaties requiring and those not requiring positive govern-
mental cooperation, and between treaties signed with and without
reservations^
In modern times numerous multilateral treaties dealing with
cultural, economic and technical matters have been concluded
in which the sovereign aspect of the signatories is insignificant.
Parties to such a treaty need not be States,80 and States not
recognising each other need feel no embarrassment in signing the
same document.81 Sometimes non-recognising States may feel
it desirable to make a statement to the effect that their signature
77 Hackworth, vol. I, pp. 348-9. It may be noted that, although the Treaty is in
the nature of an open convention, the Soviet Government was precluded from
adhering to it by Article 10 of the Treaty (113 B.F.S.P., 1920, p. 794). [Article
10 did not forbid Soviet adherence, it merely required the prior recognition
of a Russian Government.]
78 E.g., the adherence of the Soviet Union to the Kellogg Pact, 1928 (Hudson,
loc. cit.j p. 126 et seq.).
79 See, however, the letter of the United States Acting Secretary of State to
Wilson, July 26, 1931, in which it was stated that no recognition would
result from the ' signature of or adherence to a multilateral treaty to which
the unrecognised regime was a party' (U.S. For. Rel. 1931 (I) 674).
80 E.g., in the Universal Postal Convention, June 28, 1929 (Hudson, Inter-
national Legislation, vol. 4, p. 2870) and the Convention for the Protection of
Literary and Artistic Works, June 2, 1928 (ibid., p. 2463), many of the signa-
tories were dependencies.
81 Colombia signed with Panama, whom she did not recognise, the Convention
on Literary and Artistic Copyright, August 11, 1910 (Treaties, vol. 3, p. 2925),
the Convention on Inventions, Patents, Designs and Industrial Models,
August 20, 1910 (ibid., p. 2930), and the Convention on Protection of Trade
Marks, August 20, 1910 (ibid., p. 2935).
Modes of Recognition 207
would not prejudice the political relations between the parties.82-
In most cases in which the United States signed multilateral
treaties along with the then unrecognised Soviet Government,
she took care to make reservations.83 In view of the nature of
the treaties, which would not in any case affect the political
relations between signatories, reservations of this kind are legally
tautologous. The United States on several occasions admitted
such redundancy.81 On later occasions, this practice of making
reservations was abandoned altogether.85 It does not appear that
other governments under similar circumstances thought it neces-
sary to make similar reservations. As recognition concerns
political relations, it cannot be effected by the signing of non-
political conventions, whether with or without reservation.
The signing of a multilateral political treaty, on the other
hand,may be presumed to constitute recognition, and the presump-
tion depends upon the scope and importance of the matters
regulated. A comprehensive treaty which necessitates the
plenitude of relations would, no doubt, be regarded as warranting
the inference of recognition.86 The difficulty arises only when the
relations contemplated in the treaty are such that, although
important, they do not require the fulness of diplomatic inter-
course, such as the Kellogg Pact. Can recognition be inferred
from its signature? The United States answered in the negative.87
82 A statement to that effect was made by the President of the Conference on
the occasions of the signing of the Scheldt Convention, 1863, and the Inter-
national Telegraphic Convention, 1865 (Lauterpacht, p. 374, n. 3; Fontes
Juris Gentium, Ser. B, Sectio I, Tomus I, Pars I, 156-8). A similar statement
was inserted in the Final Act adopted on November 2, 1865, by the European
Danube Commission (ibid.).
83 For a list of such reservations, see Lauterpacht, p. 372, n. 2; Hackworth,
vol. I, pp. 347-50.
81 E.g., see Kellogg to Burton, April 16, 1925 (Hackworth, vol. I, p. 348); Acting
Sec. of State to Wilson, July 26, 1931 (U.S. For. Rel. 1931 (I) 674).
85 Reservations were dispensed with in signing the Telecommunications Con-
vention, 1932, and the International Air Sanitary Convention, 1932 (Hack-
worth, vol. I, pp. 350-2), the Convention on the Regime of the Straits, 1923
(ibid,, p. 348), and the Universal Postal Conventions of 1924 and 1929
(Hudson, loc. cit., n. 19, above, p. 130). In signing the convention on the
Suppression of Counterfeiting of Currency, 1929, the failure to make
reservations was, however, an omission (U.S. For. Rel., 1931 (I), 674).
86 The signing of the Peace Treaties of 1919 by Czechoslovakia and Poland
was considered as recognition of them by other signatories (Temperley,
loc. cit.; Lawrence, op. cit., p. 87; Keith's Wheaton, p. 56).
87 Hackworth, vol. I, p. 363. Sir Arnold McNair thinks that participation in
multilateral law-making treaties need not imply recognition, because it does
not involve diplomatic contact (The Functions and Differing Legal Character
of Treaties, 11 B.Y.I.L., 1930, p. 100, at p. 109).
{/
\y
208 Modes of Recognition
"International writers disagree over the significance of the Soviet
adherence.88 Professor Hudson's reasoning seems to be basically
sound. He says :
' The Government of the United States has not recognised the
Government of the Union of Socialist Soviet Republics. This does
not mean that in the view of the Government of the United States,
the Government of the Union of Socialist Soviet Republics does
not exist. . . . Nor does it mean, necessarily, that the two govern-
ments can have no relations with each other. It means, rather,
that their relations are not those which members of the inter-
national community ordinarily have, and are not conducted
according to established usages and general principles of inter-
national law.' 8'
To remove any doubt as to whether the totality of relations
is implied, it would be best for the treaty to contain an express
stipulation to that effect.90
A further test has been suggested for determining whether a
particular multilateral treaty implies recognition. Where a treaty
provides for ' reciprocal affirmative duties and obligations ' and
requires ' affirmative inter-governmental cooperation and deal-
ings ', recognition is thought to be implied.91 On this ground, the
participation in the Kellogg Pact was thought not to imply
recognition.92 Non-recognition is held to be incompatible with
the undertaking of positive obligations.93 [Nevertheless, despite
the adherence of Israel to the Charter of the United Nations,
Egypt and the other Arab members of the United Nations still
maintained that they had not recognised the State of Israel.]
A few words must be said with regard to the nature of a
reservation made upon signing a multilateral treaty to which an
88 See Briggs, op. cit., p. 68.
89 Hudson, loc. cit., p. 127.
90 E.g., Preamble to the Treaty of Paris, March 30, 1856, in which the indepen-
dence of Turkey was guaranteed (46 B.F.S.P., 1855-1856, p. 8). In the
Protocol of Conferences, January 24, 1871, relative to the revision of the
Treaty of Paris, 1856, the delegates recorded their recognition of the German
Empire (61 B.F.S.P., 1870-1871, p. 1199). Similarly, Article VII, Treaty of
November 15, 1831, regarding independence of Belgium (Hertslet, Map of
Europe by Treaty, 1875, vol. 2, p. 863).
91 Opinion of the Legal Adviser of the State Department, March 15, 1932
(Hackworth, vol. I, pp. 351-2).
"Hudson, loc. cit., p. 132.
93 For eases in which it was held that the operation of a treaty requiring
positive action must be suspended when the parties were not recognising
each other, see above, p. 104.
Modes of Recognition 209
unrecognised regime is a party. Does it have the effect of denying
the legal existence of the unrecognised regime? Does it have the
effect of excluding the unrecognised regime from the legal
relations established by the treaty, so far as the non-recognising
State is concerned? Or, does it merely suspend the operation of
the provisions between the non-recognising and the unrecognised
parties? Or, again, does it merely indicate that, apart from the
legal relations entered into in consequence of the signing of the
treaty, the parties in question do not consider themselves in any
way bound to each other?
The suggestion that a State can sign a treaty with someone
who does not exist is absurd and does not bear examination.
The existence of an unrecognised participant to a treaty cannot
be denied by means of a reservation, at least, where the obliga-
tions under the treaty are of a political nature.
It cannot even be said that, by means of a reservation, a State
can exclude an unrecognised party from the legal relationship ,
set up by the treaty.** The most that a reservation can do is to
suspend the operation-of the treaty as between the parties not
recognising each other. The legal relationship is, however,
established by the signature of it. ") This appears to be the proper
interpretation of the reservation made by the United States to
the Sanitary Convention of June 21, 1926. The reservation
reads :
' They (i.e., the Plenipotentiaries of the United States) further
declare that the participation of the United States of America in
the International Sanitary Convention of this date does not
involve any contractual obligation on the part of the United States
to a signatory or adhering power represented by a regime or
entity which the United States does not recognise as representing
the Government of that power, until it is represented by a Govern-
ment recognised by the United States' 95
The second italicised passage clearly indicates that only the
operation of the treaty was temporarily suppressed. The legal
relationship would automatically come into operation once
the obstacle to it was removed. The original signature must be
'4 See, however, Lauterpacht, pp. 371-2.
95 Hudson, International Legislation, vol. 3, p. 1975. Italics added. Almost
identical reservations were made by the United States upon signing the
Convention on Narcotic Drugs, July 13, 1931 (ibid., vol. 5, p. 1078).
210 Modes of Recognition
considered valid, and as not requiring renewal, should recogni-
tion be finally accorded.
So long as reservations are permissible in international law,
a signatory to a multilateral treaty would, in general, be free to
fix whatever limits to the application of the treaty he might see
fit. But in some cases this right of self-determination is difficult
to maintain. For instance, supposing a signatory to the Optional
Clause of the Statute of the International Court of Justice
inserts a reservation similar to the one quoted above, can
that signatory object to the compulsory jurisdiction of the Court
upon complaints by a regime which it does not recognise? 9*
Considering especially the case of a State whose Government was
recognised by other signatories at the time of its signing the
Optional Clause, but not at the time of the litigation, can the
non-recognising State object to the exercise of jurisdiction on the
ground of non-recognition? It should be thought that if a State
is entitled to do so, it would be opening a convenient door to
treaty evasion.
Although the United States made no reservation to the
Kellogg Pact, she consistently maintained the view that its
adherence by the Soviet Government did not constitute recogni-
tion of the latter by the United States. On December 2, 1929,
however, the United States addressed identic notes to Russia
and China, reminding them of their obligations under the Pact.97
The examples of the Optional Clause and the Kellogg Pact
strongly affirm the conclusion that, although positive cooperative
action is not possible between signatories or adherents of political
multilateral treaties who do not recognise each other,98 the fact
86 The question is answered in the negative by Williams (Recognition, 15 Grotius
Transactions, 1930, p. 53, at p. 77).
87 Documents on International Affairs, 1929, p. 274 et seq. The Soviet Govern-
ment, in reply, expressed surprise at the American note, as there were no
' diplomatic relations ' between the two States. It also rejected the notes
of Roumania and Egypt on the same ground, although Roumania had
signed and ratified the Litvinov Protocol.
88 However, such positive actions may be demanded from the participants of
the League of Nations and the United Nations. Article I (1) of the Covenant
expressly provides that accession should be ' without reservation '. See,
however, the special cases of Colombia and Switzerland (Hudson, Membership
in the League of Nations, 18 A.J.I.L., 1924, p. 436, at pp. 438-40). The
Charter of the United Nations makes no express provision on this point.
But Article 4 (1) makes membership conditional upon acceptance of the
obligations under the Charter, which would be interpreted as meaning
' unconditional acceptance '. See Goodrich and Hambro, Charter of the
United Nations, 1949, p. 132.
Modes of Recognition 211
of non-recognition does not liberate them from the legal obliga-
tions under the treaties.
International Organisations
V International organisations are, in general, the outcome of
international treaties : treaties of a special kind which create, not
contractual, but corporate relations among signatories." They
are usually closed conventions, adherence being only by the
consent of existing signatories.1 Like multilateral treaties, inter-
national organisations may be non-political, in which case,
political independence may not be a requisite qualification for
membership.2 Participation in these organisations would not
involve recognition.3")
Whether admission to the League amounted to recognition
is a controversy which cannot be terminated by the extinction of
the organisation. It promises to revive whenever a new inter-
national organisation is to be set up. From a strictly formal point
of view, this question need not have arisen at all under the
Covenant. By a literal interpretation of Article 1 (2) of the
Covenant, a community might have been admitted to the League
which did not possess political sovereignty, so long as it answered
to the description of ' fully self-governing State, dominion or
" Not all signatories to the treaty creating an international organisation need
become members of the organisation. Thus the defeated Central Powers,
who signed the Peace Treaties, did not become at once members of the
League of Nations. On the other hand, membership of the League may
be acquired without adherence to the Peace Treaties, as in the case of
Mexico (Hudson, Mexico's Admission to Membership in the League of
Nations, 26 A.J.I.L., 1932, p. 114, at p. 117; same, Membership in the League
of Nations, 18 A.J.I.L., 1924, p. 436, at pp. 442-3).
1 [As regards the United Nations, see Green, Membership in the United Nations,
2 Current Legal Problems, 1949, p. 258.] For variations of this rule, see
Jenks, Some Constitutional Problems of International Organisations, 22
B.Y.I.L., 1945, p. 11, at pp. 20-2.
sSee, for instance, Article 10(5) of Convention of June 7, 1905, on the
International Institute of Agriculture (Treaties, vol. 2, p. 2143); Article 8,
Convention of June 28, 1929, on the Universal Postal Union (Hudson,
International Legislation, vol. 4, p. 2873). Colonies took part in the Inter-
national Telecommunication Union, Convention of December 9, 1932
(Treaties, vol. 4, p. 5379), and may become ' associate members ' of the
World Health Organisation (Sharp, The New World Health Organisation,
41 A.J.I.L., 1947, p. 509, at p. 515). On December 16, 1920, Georgia and
the Baltic States, though unqualified for membership of the League, were
admitted to the technical organisations (L.o.N., Records of 1st Assembly,
Plenary Meetings, 634).
'See report of L.o.N. Advisory Committee, quoted in Willoughby, Sino-
Japanese Controversy and the League of Nations. 1935, p. 524.
U
212 Modes of Recognition
colony '." However, as a matter of practice, the qualification of
' recognition ' constituted a weighty consideration when the
question of admission of new members was raised in the First
Assembly of the League.
(^The question presented to the League was whether recogni-
tion by all or any of the members was a condition precedent to
the admission of a new member. However, in the course of
discussion, the issue which occupied the minds of the members
turned out to be whether admission would automatically imply
recognition of the new member by those members who had not
hitherto recognised it. The latter question was in fact a corollary
of the former: if recognition was a necessary condition for
admission, then the League in admitting a new member must be
presumed to have satisfied itself that this condition had been
fulfilled." , Certainly, the condition of recognition was not to be
found anywhere in the Covenant?) It is true that, among the
questionnaires put to the Sub-Committee on the Admission of New
Members, there was one which inquired : ' Was the Government
applying for admission recognised de jure or de facto and by
which State? ' ' But this was only for purposes of reference, and
was never regarded as a decisive factor in determining the question
of admissibility.8
' It has been argued that, even though there was nothing in the
Covenant requiring recognition as a condition for admission, yet,
having regard to the special relations between members of the
League, admission must have implied recognition.9 This may not
4 Fauchille, op. cit., t. I, Pt. I, p. 333. For the meaning of the terms ' State,
dominion or colony ', see Friedlander, The Admission of States to the League
of Nations, 9 B.Y.I.L., 1928, p. 84, at p. 85; see also Schwarzenberger, The
League of Nations and World Order, 1936, pp. 31 et seq., 84 et seq.
5 See Rougier, La Premiere Assemblie de la Societe des Nations, 28 R.G.D.I.P.,
1921, p. 197, at p. 233 et seq.
6 See opinion of Lord Robert Cecil in 5th Committee of the 1st Assembly
of the League (L.o.N., Records of the 1st Assembly, Committees, vol. 2,
p. 157) and the contrary view of Politis {ibid.). The opinion of the Com-
mittee of Jurists was divided (ibid., pp. 160-1).
7 Ibid., p. 159.
8 Of the new members admitted during the 1st Assembly, only Bulgaria was
recognised by all the Powers (L.o.N., Records of the 1st Assembly, Plenary
Meetings, p. 598). Costa Rica was only recognised by 13 members (ibid.,
p. 606); and the position of Albania was doubtful (ibid., p. 669). In pre-
senting the report of the 5th Committee, its Chairman said that the com-
mittee did not allow itself to be hampered by the legal considerations of
recognition (ibid., p. 561).
9 Such, in effect, was the opinion of the Belgian delegate, M. Poullet (ibid.,
pp. 623-4). Also Scelle, L' Admission des Nouveaux Membres de la Societe
des Nations, 28 R.G.D.I.P., 1921, p. 122, at pp. 127-8; Fauchille, op cit.,
t. I, Pt. I, pp. 334-5.
Modes of Recognition 213
be entirely true, but the First Assembly of the League seemed to
regard some measure of recognition as prerequisite for
admission.10
^In view of the special obligations under the Covenant, it is
difficult to imagine how membership could have been compatible
with the denial of existence as a State (the status of the British
Dominions and India being excepted). A constitutive writer must
necessarily admit that membership of the League had to be
conditioned upon recognition, for without recognition there
would be no capacity for these obligations^) This logic was not,
however, always followed in practice. In several cases members
have insisted upon the right to withhold recognition from a
new member.12
There are further difficulties for the constitutive doctrine. If
admission amounted to recognition, would that recognition be
considered withdrawn when a State ceased to be a member? What
would have been the position of a State, a member of the League,
whose government was overthrown and whose new government
was not recognised by all or by a certain number of the members?
As regards the first question, it is believed that until the League
had acquired a universality which would identify it with the
Family of Nations, the withdrawal or expulsion from it could not
produce the effect of extinguishing the existence of State person-
ality.13 As to the second question, if a State represented by a
regime not recognised by all the members of the League was not
qualified to apply for admission, it would seem that, by analogy, a
new regime in a member State would also not have been qualified
10 Armenia was rejected on the grounds both of doubts as to her frontiers
and of the lack of recognition (Rougier, loc. cit., pp. 235-6).
11 Kelsen, loc. cit., n. 8, p. 213 above, p. 614; Anzilotti, op. cit., vol. I, p. 172.
See also the decision of the Com. Trib. of Luxemburg in U.S.S.R. v. Luxem-
burg and Saar Co., Annual Digest, 1935-1937, Case No. 33. Fauchille (op.
cit., t. I, Pt. I, p. 334) and Williams (Joe. cit., p. 62) also took this view.
[In his Law of the United Nations, 1950, Professor Kelsen suggests that the
admission of a non-recognised State to the United Nations would imply
recognition (p. 79). However, the United States supported the admission
of Transjordan before according recognition, and in the opinion of some
of the States who had not previously recognised her, the admission of Israel
did not effect her recognition. However, on August 19, 1949, Canada
informed the Government of Israel that she considered ' the vote cast by the
Canadian Delegate in the General Assembly on May 11, in favour of Israel's
admission to the United Nations, as having implied full recognition by the
Government of Canada of the State of Israel ' (Israeli Foreign Office letter
FO/I/(60), November 18, 1949).]
12 Lauterpacht, p. 401; Hudson, op. cit., 18 A.J.I.L., 1924, pp. 438-9.
33 Erich, loc. cit., pp. 497-8.
214 , Modes of Recognition
to represent the State in the League unless and until it had been
recognised. This would mean that, in the absence of recognition
by other members, a State would have lost its right of membership
for reasons not contemplated by the Covenant. Such a result
would also be in conflict with the principle that the international
obligations of a State are unaffected by a change of its govern-
ment. The point is thought to have arisen when in 1928 the
Nationalist Government superseded the old government in China.
But there was no discussion on this point at the League, there
being no rival claimant to dispute the right of representation."
The admission of a new member to the League had to involve
certain, though not all, relations between the old and the new
members. But, according to the declaratory theory, the main-
tenance of such partial relations need not involve the consequence
of recognition, not even by those members who had voted for
the admission.15 The relationship between members not recog-
nising each other would be exactly the same as that between
members having severed diplomatic relations. Members were
bound by the Covenant to maintain certain defined relations with
each other irrespective of their extra-League relations.16
14 Williams, loc. cit., p. 71. [The problem has also arisen in connexion with
China's status as a permanent member of the Security Council of the United
Nations; the Soviet Union contended in 1950 that only the representative
of the Communist regime in China, which had at that time only been
' recognised by the Soviet Union, the United Kingdom, and a minority of
the members of the Security Council, was entitled to take his seat as a
member of the Council. When the resolution to unseat the Nationalist
representative failed, the Soviet delegation boycotted the meetings of the
Council, and of all other bodies in which Nationalist China was represented.
In an attempt to overcome the impasse thus created, the Secretary-General
of the United Nations issued a Memorandum on ' Legal Aspects of Repre-
sentation in the United Nations '(U.N. Press Release, PM/1704, March 8,
1950). In this, after rejecting the idea that there was any duty to recognise a
new state or government, it was pointed out that representation in an organ
of the United Nations depends upon a collective act, while recognition
is individual, and ' it would appear to be legally inadmissible to condition
^ the (former) by a requirement that (it) be preceded by individual recognition.'
It was further contended that representation did not involve recognition.]
15 Erich, loc. cit., pp. 494-8. The question whether admission to the League
amounted to a recognition binding upon all members does not arise under
V^' the declaratory theory. A member was naturally bound by all the decisions
of the League taken in accordance with the prescribed procedure, including
the decision to admit new members. An old member was, therefore, bound
to accept the membership of the new member and to treat it as such, even
though it may have voted against the admission. Kelsen's theory that
recognition was binding upon all members because they had transferred to
the Assembly the competence to recognise is ingenious, but unfounded in
the Covenant (Kelsen, loc. cit., p. 614). [Despite its admittance to the United
Nations, Egypt refuses to recognise Israel.]
16 See the case of severance of diplomatic relations between Uruguay and the
Soviet Union, December, 1935 (Hyde, Freedom to Withdraw Diplomatic
Relations, 30 A.J.I.L., 1936, p. 284).
Modes of Recognition 215
Normally, the maintenance of full diplomatic relations would be
in consonance with the spirit, if not the letter, of common
membership under the Covenant.
The question of recognition under the Charter of the United
Nations is not very different. One point which is obviously an
improvement upon the Covenant is that the qualification for
admission is now limited to * States ' instead of the former
' States, dominions and colonies '." Although several of its
members, at the time of their admission, could hardly answer the
description of the word ' State Y8 the text of the Charter leaves
no doubt that in future no entities other than States may be
admitted.19 [This prerequisite of statehood was emphasised by
the International Court of Justice in its Advisory Opinion on
Conditions of Admission of a State to Membership in the United
Nations (1948).20] Admission to the United Nations would be a
positive proof of the possession of the quality of statehood, though ^/
it does not mean that other members are obliged to enter into
relations with it to the full extent,21 [and the admission of Israel
to the United Nations while not recognised by all members,
suggests that existing members do not regard membership of the
United Nations as automatically entailing the recognition of an
unrecognised State, although Canada announced, in August,
17 Article 4 (1) of the Charter.
18 E.g., India, Byelorussia, Ukraine, the Philippine Commonwealth, Lebanon
and Syria (Goodrich and Hambro, op. cit., n. 66d, p. 203 above, pp. 122-5).
19 Poland opposed the admission of Transjordan to the United Nations on
the ground that the sovereign independence of the applicant was doubtful
(U.N. Security Council, Official Records, 1st Year, 2nd Series, Supplement
No. 4. pp. 70-1). [The Soviet Union objected to the admission of Ceylon
on similar grounds (Security Council, Official Records, Third Year, No. 105;
Green, loc. cit., p. 272), while the United States declined to support the
application of the Mongolian People's Republic until that State could prove
it was completely independent (United States Information Service, Daily
Wireless Bulletin, No. 1003, lune 13, 1949).]
20 [I.C.J. Reports, 1948, p. 57, at p. 62.]
21 The requirement of recognition was not mentioned among the principles
laid down by the Committee on the Admission of New Members (Supple-
ment, No. 4. p. 55). The application of Transjordan, Eire, Portugal and
Siam were opposed by the Soviet Union on the ground that these countries
had no diplomatic relations with her (ibid., pp. 70, 72, 74, 77), and she
later vetoed their admission (ibid., No. 5, pp. 139-40). This ground was
opposed by the United States (ibid., No. 4, p. 55) [who had supported the
application of Transjordan, although she had not accorded de jure recog-
nition to that State, and did not regard her vote as having done so. For
a discussion of all these cases see Green, loc. cit.; and for the legality of
the Soviet attitude see Conditions of Admission of a State to Membership
in the United Nations (1948), I.C.I. Reports, 1948, p. 57.]
V'
216 Modes of Recognition
1949, that she regarded her vote in favour of Israel's admission to
the United Nations ' as having implied full recognition by the
Government of Canada of the State of Israel '.21a]
§ 6. Relations Officieuses
As, by definition, only formal political relations between States
constitute recognition, the maintenance of relations which are
officious and informal does not carry with it the consequences
of recognition.22 Such relations officieuses may be maintained
between two States, or between a State and a body which falls
short of statehood, such as a belligerent community. The
question of the existence of statehood is therefore totally
irrelevant.
Relations officieuses are usually restricted to matters of
immediate concern, such as the temporary security of the subjects
and property of the non-recognising State,23 and, in the case of
civil war, the insistence on the rights of neutrality.24 A broader
view was taken by Jefferson whose instruction of November 7,
1792, to the American Minister at Paris, stated that, with a
Government de facto, matters like the reforming of unfriendly
restrictions on commerce and navigation might be taken up.25 It
31a [Israeli Foreign Office letter, FO/I/(60), November 18, 1949.]
12 United States agents had been in informal intercourse with the French
Government before the independence of the United States was recognised
(Moore, Digest, vol. I, p. 206). In an instruction to the United States
Minister to Venezuela, Sec. Evarts said that pending formal recognition
' the diplomatic fiction of " officious " intercourse, or " unofficial " action is
elastic enough to admit of continuing ordinary intercourse' (ibid., p. 151).
For other instances see Hackworth, vol. I, p. 327; Briggs, Relations Officieuses
and Intent to Recognise: British Recognition of Franco, 34 A.J.I.L., 1940,
p. 47, at p. 52 et seq.
23 See Note of November 26, 1861, from Earl Russell to Mr. Adams (Moore,
Digest, vol. I, p. 209), claiming the right to demand redress and protection
from the de facto authority. Requests for protection were also made by
the United States to factional authorities in Haiti in 1824 (ibid., pp. 216-7),
in Bolivia, 1899 (ibid., p. 243), in Colombia, 1900 (ibid., p. 139), and in
Mexico, 1912 (Hackworth, vol. I, pp. 360-2).
24 Seward took the view that when belligerency is recognised, intercourse can
take place between agents in reference to the terms of the belligerency
(Wharton, Digest, vol. I, p. 514). During the Brazilian naval revolt, 1893-4,
foreign governments were constantly in touch with the insurgents on the
conduct of hostilities (Moore, Digest, vol. 2, p. 1113 et seq.). For United
States communications with Franco, see Hackworth, vol. I, pp. 362-3.
a* Moore, Digest, vol. I, p. 120.
Modes of Recognition 217
is not uncommon for important commercial and even political
matters to be dealt with in this informal manner.26
The commonest method of establishing relations officieuses is
by sending and receiving non-diplomatic agents. Some of these
agents are commercial in character and may be assimilated to
consuls.27 Many are entrusted with political functions and are
styled ' agents ', ' commissioners ', ' political agents ', or even
' diplomatic agents \28 The fact that an agent is styled
' diplomatic ' does not affect the question of recognition, so long
as the intercourse remains unofficial and informal.
Apart from the appointment of agents, informal intercourse
may be maintained through the retention of the diplomatic and
consular officers of the non-recognising State in the territory of
the new entity.29 During the French revolutions in 1792 and
26 Thus, in 1919, Britain and the Allied Powers cooperated with the unrecog-
nised Provisional Government of Northern Russia (The Annette: The Dora
[19191. P. 105). A trade agreement was entered into between Britain and
the Spanish Nationalists although Britain had not recognised the belligerency
of the insurgents (Pari. Deb., H.C., 5th Ser., vol. 328, col. 1386; Briggs,
loc. cit., p. 52). Important political discussions through informal means
took place between the United States and Mexico regarding the recognition
of the Huerta and Obregon Governments (Hackworth, vol. I, pp. 257-8,
262). See also below, n. 28.
27 See above, p. 198 et seq.
28 United States agents were sent to various European capitals after the Declara-
tion of Independence (Moore, Digest, vol. I, p. 206). The United States
sent an agent to the regency at Madrid in 1813 (ibid., p. 133); received the
agent of Buenos Aires in 1817 (Paxson, op. cit., n. 3, p. 79 above, p. 152);
received an agent from the Calderon Government of Peru in 1881 (Wharton,
Digest, vol. I, p. 550); sent John Lind as ' personal representative ' of President
Wilson to Mexico in 1913 (Hackworth, vol. I, p. 259). An American
Diplomatic Agent and Consul-General resided at Cairo before the recog-
nition of Egypt by the United States (ibid., p. 209). Both the United States
and China exchanged Commissioners with India prior to her independence
(above, p. 197). The British Government received Confederate agents, arguing
that it was customary both in England and France to receive such persons
(Moore, Digest, vol. I, p. 209). This right to receive agents from belligerent
communities was emphatically stressed by the British Government in the con-
troversy over The Trent case (Earl Russell to Lord Lyons, January 23, 1862,
reproduced in Bernard, Neutrality of Great Britain during the American Civil
War, 1870, p. 215 et seq.). Great Britain exchanged agents with the Spanish
Nationalists in November, 1937, and they were later mutually accorded
certain diplomatic privileges. It was maintained by the British Government
that no recognition was involved (April 4, 1938, Pari. Deb., H.C., 5th ser.,
vol. 334, col. 4). The view has been upheld in Luther v. Sagor [1921], 1 K.B.
456, 477.
29 Moore, Digest, vol. I, p. 235. In the Hopkins Claim (1926) it was held that
the embassies and consulates of the troubled State might likewise continue
their routine work in behalf of whoever was in control of the Foreign Office
(Opinions of Commissioners, 1927, p. 46). In 1792, however, the new capacity
of the French Minister was refused recognition by Britain, when he trans-
ferred his allegiance to the Republican Government (Smith, vol. I, p. 87
et seq.). though he continued to be treated informally. [Foreign ambassadors
and consular officials in 1949 remained in that part of China which was
occupied by the communists, and apparently unofficial contacts were made
218 Modes of Recognition
1851, the American ministers were instructed to enter into
informal relations with the de facto authorities.30 Informal
relations were maintained by the United States with the Supreme
Junta in Spain, 1809,31 and with the revolutionary party in
Ecuador, 1895.33 In 1855, during the non-recognition by the
United States of the Rivas- Walker Government in Nicaragua, the
American Minister was instructed to abstain from official inter-
course with that government, but not to forfeit all the immunities
of a Minister.33
We have seen that, despite the public character of the agent
who is charged with the conduct of relations officieuses, the
question of recognition is not affected by their activities, unless
these partake of a formal and official character. Just what act
is to be considered formal or official is a question that admits
of no simple answer. American practice reveals considerable
lack of consistency. It may perhaps be stated that the delivery of
a congratulatory speech or document to the new head of State or
government almost certainly implies recognition.34 On the other
hand, the surrender of criminals 35 or the conduct of business
with the de facto authorities in the capacity of the doyen of the
diplomatic corps 36 is believed to imply no recognition. The
State Department has issued conflicting instructions as regards
business transactions " and the travel visa issued by unrecog-
nised authorities.38 Between the two extremes, the action of the
(Mr. Attlee, House of Commons, May 5, 1949, Pari. Debates, vol. 464,
col. 1351). United States consular officials who had remained in communist
China despite the non-recognition of the communist Government, were
recalled in January, 1950, after ' Chinese Communist authorities . . . (had)
ordered the taking over of United States consular property . . . and . . .
seized that property in defiance of protests by the United States Govern-
ment. . . . The United States Government takes an extremely serious view
of this situation, which constitutes a flagrant violation of our treaty rights
and of the most elementary standards of international usage and custom '
(United States Information Service, Daily Wireless Bulletin, No. 1180,
January 16, 1950).]
30 Moore, Digest, vol. I, pp. 120, 125-6.
31 Ibid., p. 132.
32 Ibid., p. 156.
33 Ibid., p. 140-1. [In 1949 both Great Britain and the United States sought to
retain their diplomatic privileges, although not recognising the communist
authorities in China (The Times, June 14, 1949), and see n. 29 above.]
34 E.g., action of United States Minister in France, 1848 (Moore, Digest, vol. I,
p. 124) and in Roumania, 1881 (ibid., p. 115).
35 Hall, p. 109; Moore, Digest, vol. I, p. 206; Hackworth, vol. 4, p. 37. Contra,
Le Normand, op. cit., p. 281.
36 Hackworth, vol. I, p. 344.
37 Ibid., pp. 354-5.
38 Contrast cases cited ibid., pp. 338-40, 342.
Modes of Recognition 219
United States has generally been guided by caution and prudence,
often at the cost of consistency. Thus, Secretary Seward, in
refusing to receive the agents of Maximilian, declared that it was
the " fixed habit ' of the United States to hold no ' unofficial or
private intercourse with persons with whom it cannot hold
official intercourse '.39 Yet, according to Moore, the reception
of the delegates of the South African Republics in 1900 by the
American President and the Secretary of State, constituted only
an ' act falling short of recognition '.40 As to the reception of the
American diplomatic representatives by the heads of the un-
recognised regimes, in some cases attendance at such receptions
was discouraged,41 but in others it was sought for.42 The State
Department has also not been uniform in its rulings as to whether
the fact that an agent is armed with letters of credence impels
the presumption of the official character of his acts.43 One of
the common methods of indicating the informal character of the
relations is to avoid written documents,44 and, whenever written
communication is necessary, to avoid addressing the addressee
by title,45 and to mark the document ' personal \46
The above review of American practice illustrates how very
39 Dana's Wheaton, § 76, n. 41.
40 Moore. Digest, vol. I, pp. 212-4.
11 In 1851, the United States and Swiss Ministers abstained from the weekly
receptions of the French President, Louis Napoleon (ibid., p. 125). In
1936, the United States and Mexican Ministers abstained from the reception
of the Provisional President Franco of Paraguay (Hackworth, vol. I, p. 270).
42 See cases of the Provisional Government of Spain, 1931 (ibid., p. 295), and
the Tuan Chi-jui Government in China, 1924 (ibid., pp. 316-7). The United
States charge d'affaires in Mexico was instructed to attend General Obregon's
inauguration as President in his private capacity (ibid., p. 345). The American
Minister to Venezuela was reproved for failing to attend a banquet given
by President Blanco in 1879 (Moore, Digest, vol. I, p. 151).
43 Such letters of credence were issued to United States agents to Buenos Aires
(1810). Caracas (1812), and Greece (1825), in the absence of recognition
(ibid., p. 215). In 1849, Dudley Mann was furnished with a full power to
negotiate and conclude a commercial Convention with Hungary (ibid.,
pp. 218-9). On the other hand, the issue of letters of credence was refused
to the United States agent to Haiti, 1824, and Paraguay, 1845. In the
former case, the Secretary of State said that the issue of such letters of
credence ' would be an explicit acknowledgment ' of the government (ibid.,
pp. 216-7). Moore (ibid., p. 235) thinks that there is no recognition so
long as there is no formal presentation of credentials. [The receipt of the
letters of credence carried by the first Israeli Minister to Great Britain did
not change the nature of the de facto recognition of Israel accorded by Great
Britain (see p. 198 above).]
41 Hackworth, vol. I, p. 342.
45 Ibid., Pp. 244, 306. See conflicting instructions, ibid., p. 343. Also below,
pp. 220-1.
"Ibid., pp. 244, 258, 282, 343.
220 Modes of Recognition
thin is the line between official and officious acts. Sometimes it
is almost obliterated. In 1885 the American Minister was
instructed to maintain ' the most friendly and intimate relations '
with the de facto government of Peru, which should be * as full
and direct as though the formality of recognition had taken
place'.47 In dealing with the Soviet Government the United
States performed many acts which, under other circumstances,
would have been deemed to imply recognition.48
Let us now consider the question of addressing an unrecog-
nised authority by title. Phillimore thinks that the assumption of
title is a matter within the competence of every sovereign, yet
other countries may refuse to acknowledge it if it affects their own
rights.49 As a title usually indicates a certain status or capacity
claimed or pretended to by the bearer, to address him by that title
would be an admission of that claim. It is true that non-recogni-
tion of title does not affect the actual possession of power. Yet,
as an expression of disapproval and as a measure of chastisement,
the purpose of non-recognition would be defeated by admitting a
title which embodies the claim in question. A number of States
in order to avoid addressing the King of Italy as ' Emperor of
Abyssinia ' went so far as to suspend diplomatic relations with
him.50 The United States Department of State decided in 1937
that General Franco should be addressed simply as ' His
Excellency, General Franco '.51 The question of title also arises
in connexion with recognition by means of the conclusion of
bilateral treaties and the accrediting and acceptance of diplomatic
representatives. Thpre would be no recognition unless the parties
have been properly named by their respective titles. Early in
1825, in connexion with the conclusion of a treaty with Brazil,
Canning wrote that the signing of a treaty in which the plenipo-
tentiary of the new State ' is designated in the Preamble to such
treaty as the Plenipotentiary of that New State described by its
proper style (whether monarchy or republic), was in itself an
effective and valid recognition of that State by His Majesty '."
" Moore. Digest, vol. I, pp. 159-60.
48 See Hackworth, vol. I, pp. 301-3.
"s Phillimore, op. cit., n. 21, p. 15 above, vol. 2, p. 40 et seq.
50 Lauterpacht, p. 392; see also Langer, op. cit., p. 150 et seq.
51 Hackworth, vol. I, p. 363.
"Webster, op. cit., vol. I, p. 291.
Modes of Recognition 221
The recognition of the Italian conquest of Abyssinia by many
States was effected by accrediting diplomatic representatives to
King Victor Emmanuel as ' King of Italy and Emperor of
Ethiopia '." The example of Italy is especially instructive,
because diplomatic relations between the Italian Government,
as such, and other States had always existed. The only sign of
the recognition of the conquest was indicated by the recognition
of the title. On the other hand, it might be arguable whether
acquiescence by other powers in the use of a certain title by agents
of an unrecognised regime, such as the title used by the Italian
delegate who signed the Montreux Convention of May 8, 1937,
constitutes recognition.54 The situation may be likened to the case
of adherence to a multilateral treaty by unrecognised regimes,
over which other signatories can have no control.
§ 7. Collective Recognition
As the decision to establish political relations with a new regime
is primarily a matter of individual choice, recognition, in the sense
of expressing the intention to enter into such relations, would not,
in principle, require collectivity of action. Yet, in view of the
fact that States often accord treatment to new entities, not by the
criterion of actual existence, but by that of recognition, and in
order that the fact of existence may be fairly judged, unprejudiced
by selfish considerations of policy, it is highly desirable that
recognition be effected through collective action."
Collective recognition may take the form of an express declara-
tion by the recognising States,56 an express stipulation in a treaty
53 Survey of International Affairs, 1938(1), pp. 144-52, 162, 163; Lauterpacht,
p. 392. n. 2; Langer, op. cit., p. 150 et seq.
54 Lauterpacht, p. 392.
55 Lauterpacht, pp. 67-9, 165-74, 253-5; Jessup, A Modern Law of Nations,
1948, ch. 3. [Cx., however, Memorandum of Secretary-General of United
Nations on ' Legal Aspects of Representation in the United Nations '. U.N.
Press Release, PM/1704, March 8, 1950.]
56 E.g., the recognition of Albania by the Conference of Ambassadors in 1921
(Hackworth, vol. I, p. 196); of Estonia and Latvia by the Supreme Council
of the Allied Powers in 1921 (114 B.F.S.P., 1921, pp. 558-9); of Prince
Charles of Roumania by Britain, France and Germany in 1880 (Moore,
Digest, vol. I, p. 114); of the Saavedra Government in Bolivia by the United
States, Argentina and Brazil in 1921 (Hackworth, vol. I, p. 225); of the Toro
Junta in Bolivia by numerous American States in 1936 (ibid., p. 227). Cf.
Lauterpacht, pp. 68-9, 166-8.
222 Modes of Recognition
between recognising States,57 or the admission of the new body to
participate in international treaties.58 Recognition after consulta-
tion among recognising States 59 may be considered as collective
in substance, if not in form.
It has been suggested that a general international organisation,
such as the League of Nations and the United Nations, would
present itself as a convenient instrument for the collectivisation
of recognition.60 No doubt, these organisations have contributed,
and will continue to contribute, to the development of collective
recognition as a normal procedure. By making admission con-
ditional upon the possession of statehood, the United Nations
has made its membership a conclusive proof of the existence of
a body as a State. Though there is nothing compulsory in either
the Covenant or the Charter for members to enter into full
political relations with one another, the obligations under them
have made such relations in the long run inevitable, [and the
absence of diplomatic relations has been used by the Soviet
Union to oppose the admission of certain States 61] . When the
United Nations shall have attained complete universality, the
notion of ' recognition ' will wither away, and membership of
the United Nations will be the sole standard of relations between
States.62
Apart from admission to membership, the League and the
United Nations provide other means for testing the existence of
a State. Under Article 17 of the Covenant, as well as under
Articles 2 (6), 32, 35 (2) and 93 (2) of the Charter, the international
87 France and Russia by the Treaty of 1807 recognised the Napoleonic satel-
lites (De Martens, R.T., vol. 8 (1803-8), p. 641). The following were recog-
nised by States signing the Treaty of Berlin, 1878: Bulgaria (Article, I),
Montenegro (Article 26), Serbia (Article 34), and Roumania (Article 43)
(69 B.F.S.P., 1877-1878, pp. 751, 758, 761, 763). Russia and Poland recog-
nised Ukraine, White Russia and Ruthenia by the Treaty of Peace, March
18, 1921 (114 B.F.S.P., 1921, p. 917).
58 Above, p. 204 et seq.
B' For example, the recognition of Finland by the United States, Great Britain,
France and Japan, 1919 (Hackworth, vol. I, p. 212); recognition of the
Busch Junta in Bolivia by the United States, Brazil, Argentina, Peru and
Chile, 1937 (ibid., p. 228). See also Lauterpacht, pp. 69, 167-8.
eo Lauterpacht, pp. 67-8, 168-9; Jessup, op. cit., p. 45 et seq.
61 See n. 21, p. 215 above.
" This view has been expressed in connexion with the League (Friedlander,
loc. cit., pp. 99-100). On the occasion of the admission of Iraq to the
League. October 3, 1932, the League Assembly declared that ' By this act
Iraq assumes her rank among the sovereign and independent States ' (Records
of the 13th Ord. Sess. of Ass., 6th Meeting, L.o.N. Off. J. Sp. Suppl. 104).
Modes of Recognition 223
organisation claims to exercise jurisdiction over States who are
non-members. In such a case, it would be necessary to determine
whether the party in question is or is not a State.63 Likewise, the
question may also arise under Article 35 of the Statute of the
Permanent Court of International Justice and Articles 4 (3) and
35 (2) of the Statute of the International Court of Justice. It is
also conceivable that the judgment upon a dispute between two
States may depend upon the decision whether a third body con-
stitutes a State. In the performance of these functions, neither
the international organisation nor the international court creates
the State. They merely declare as existent what in fact exists,"
and upon the basis of such existence, decide upon the rights and
duties of the parties under international law. Indeed, they do not
perform the act of ' recognition ' ; they do, however, make recog-
nition more certain and, in the long run, inevitable, by insisting
that rights of States and governments should be respected, whether
they are recognised or not.
63 The question whether the Indonesian Republic was a State and whether its
dispute with the Netherlands might be considered as a matter within the
' domestic jurisdiction ' of a State under Article 2 (7) of the Charter was
hotly debated in the Security Council in July and August, 1947. (See
2 International Organisation, 1948, p. 80 et seq.) [This debate took place
after the United States had extended de facto recognition to the Republic
of Indonesia (The Times, April 18, 1947). De jure recognition was not
extended until after the formal transfer of power from the Netherlands to
the United States of Indonesia (United States Information Service, Daily
Wireless Bulletin; Nos. 1166, 1167, December 28, 29, 1949).]
64 Tinoco Arbitration (1923) 1 Reports of International Arbitral Awards, 369,
at p. 381.
CHAPTER 15
RECOGNITION:
BY WHOM DETERMINABLE1
The question which of the several organs of government should
be entrusted with the function of deciding upon matters of recog-
nition is primarily one of municipal, rather than international
law. The question is, however, of interest from the international
point of view, because there is the necessity of determining
whether, in a given case, a State has, through its appropriate
organ, accorded its recognition, and what consequences are to
be attributed to it.
§ 1. Organ for Recognition
Recognition, being an act of initiating or maintaining certain
relations with other countries, naturally falls within the function
of that organ which is charged with the conduct of foreign
relations. In countries having federal constitutions, the matter is
complicated by the distribution of foreign relations powers
between the national authorities and the constituent members.
In some of these constitutions, member States are allowed a
limited right of treaty-making.2 By the amendment to the con-
stitution of the Soviet Union in February, 1944, Republics of the
Union are permitted to enter into ' direct relations with foreign
States \* It may be a grave question whether, in exercising such
foreign relations powers, the member States can perform an act
of recognition under international law.
The Constitution of the United States has made it quite clear
that the power of foreign relations is in the sole charge of the
1 Unless otherwise indicated, the discussions in this section generally apply
to the recognition of belligerency. See also below, pp. 393-4.
2 E.g., Article 9 of the Swiss* Constitution of 1848 (Rappard, Source Book on
European Governments, 1937, Pt. I, p. 21); Article 78(2) of the German
Constitution of 1919 (112 B.F.S.P., 1919, p. 1076).
3 New Article 18 (a) (Dobrin, Soviet Federalism and the Principle of Double
Subordination, 30 Grotius Transactions, 1944, p. 260, at p. 261).
224
By Whom Determinable 225
national government.1 This view has been consistently upheld
by American courts."
To which branch of the national government, then, should
the power of recognition be attributed? In answering this
question it is useful to bear in mind that international law is con-
cerned, not with the analysis of the part played by a department
of government in the formation of a policy of recognition, but
only with the determination of the agency whose act may be
internationally effective as an act of recognition. Thus, a resolu-
tion of the legislature urging a particular course of action,6 or
opinions expressed in intercommunications between various
organs of the government,7 important as they may be in deciding
upon the course actually adopted, have no international signifi-
cance and cannot be relied upon for the fixing of international
responsibilities.
Since recognition is understood as an act of initiating or
maintaining certain relations with foreign States, it is generally
considered to belong to the sphere of the political departments
responsible for the conduct of foreign relations.8 But which of
the political departments: the legislative or the executive? In
the United Kingdom, the conduct of foreign affairs is a royal
prerogative, formally exercised by the Crown independently of
1 Article I, Sect. VIII (3) (11) (15); Article II, Sect. 11(1) (2), Sect. III. See
Corwin, The Constitution and What It means Today, 1946, p. 214 et seq.
5 Cohens v. Virginia (1821), 6 Wheat. 264, 413-4; Knox v. Lee, Parker v.
Davis (1870), 12 Wall. 457, 555; Chae Chan Ping v. U.S. (1888), 130 U.S.
581, 604; Nishimura Ekiu v. U.S. (1891), 142 U.S. 651, 659; Fong Yue Ting
v. U.S. (1892), 149 U.S. 698, 711; U.S. v. Curtiss- Wright Export Corp. et al.
(1936).. 299 U.S. 304, 316-7; US. v. Belmont (1937), 301 U.S. 324, 330. See
also Wright, Control of American Foreign Relations, 1922, pp. 129 et seq.,
2(>1> et seq.; Willoughby, Constitutional Law of the United States, 1929, vol. I,
pp. 90. 306-7, 513-6.
6 See below, p. 226 et seq.
7 Regarding communications between the President and Congress, see note
from Sec. Webster to Hulsemann, Austrian charge d'affaires, December 21,
1850 (Moore, Digest, vol. I, p. 224). As to communications between the
Government and its courts, see McNair, Judicial Recognition of States and
Governments and the Immunity of Public Ships, 2 B.Y.I.L., 1921-1922,
pp. 57-8; Lyons, Conclusiveness of the Foreign Office Certificate, 23 B.Y.I.L.,
1946, p. 240; the same, The Conclusiveness of the ' Suggestion ' and Certificate
of the American State Department, 24 ibid., 1947, p. 116; the same, Conclu-
siveness of Statements of the Executive: Continental and Latin-American
Practice, 25 ibid., 1948, p. 180.
8 Le Normand, op. cit., n. 1, p. 14 above, p. 277; Hyde, vol. I, s. 41, pp. 156-7;
Despagnet et de Boeck, Cows de Droit International Public, 1910, s. 83;
Fraenkel, The Juristic Status of Foreign States, Their Property and Their
Acts, 25 Col. L.R., 1925, p. 544, at pp. 547-8; Finkelstein, Judicial Self-Limita-
tion, 37 H.L.R., 1923-1924, p. 338, at p. 349; Weston, Political Questions,
38 H.L.R., 1924-1925, p. 296, at p. 318. For judicial authorities, see below,
n. 41.
226 Modes of Recognition
Parliament.' The power of the French President is substantially
the same, though in theory less absolute.10 In Switzerland, how-
ever, the power of recognition is vested in the Federal Council in
conjunction with the Federal Assembly.11
In the United States the President is the sole representative
organ of the State. The President, in exercise of his power of
sending and receiving diplomatic and consular representatives,
the negotiation and conclusion of treaties, the announcement of
policies, the proclamation of neutrality, and the conduct of war,
performs the function of recognition.12 It is true that, in matters
of appointment and treaty-making, his action is subject to
approval by the Senate. Yet, as the Senate has control over the
eventual validity of the treaty, and not its signing, it cannot undo
the effect of recognition after a treaty has been signed. The
Executive, moreover, can in certain cases, bypass the Senate by
resorting to ' executive agreements ', or other modes of recogni-
tion which require no senatorial cooperation. The amount of
legislative control over recognition is dependent, therefore, to a
great extent, upon the mode in which recognition is accorded.13
The United States Congress sought, on several occasions, to
influence the recognition policy of the United States, and even to
implement that policy by its direct action. It passed resolutions
expressing sympathy with the new-born States or governments,"
exerted pressure upon the Executive by means of passing appro-
9 Phillips, Principles of English Law and the Constitution, 1939, p. 237;
Wright, op. cit., p. 135.
10 See Articles 8(1) and 9 of the Constitutional Law of July 16, 1875 (printed
in Rappard, op. cit., Pt. II, p. 13), and Article 31 of the Constitution of
October 27, 1946 (2 Peaslee, Constitution of Nations, 1950, p. 10). See also
Noel-Henry, op. cit., s. 79.
11 Articles 85 (5) (6), 102 (7) (8) (9) (11) of the Constitution (Rappard, op. cit.,
Pt. I, p. 48). Bluntschli thinks that in Switzerland the power of recognition
belongs exclusively to the Chambers (Bluntschli, op. cit., n. 10, p. 14 above,
s. 122: also, Le Normand, op. cit., p. 277).
12 Article II, Section II (1) (2), Sect. Ill of the Constitution. See also Garner,
Executive Discretion in the Conduct of Foreign Relations, 31 A.J.I.L., 1937,
p. 289.
13 Noel-Henry, loc. cit., n. 32, p. 1 10 above, p. 209. Moore believes that had
Dudley Mann succeeded in officially presenting himself to the Hungarian
Authorities in 1849, it would have been sufficient to constitute recognition,
before any action could have been taken by Congress (Moore, Digest,
vol. I, p. 246).
"See joint resolution of December 10, 1811, regarding Latin American Re-
publics (Berdahl, The Power of Recognition, 14 A.J.I.L., 1920, p. 519, at
p. 525); resolution of April 20, 1898, regarding Cuba {ibid., p. 537; Wright,
op. cit., p. 271); the joint resolution of February 29, 1912, regarding China
(Hackworfh, vol. I, p. 164).
By Whom Determinable 111
priation bills for the expenses of diplomatic representatives to be
appointed to the new powers,15 and assumed the role of
' directing ' and ' empowering ' the Executive to extend
recognition.16
The fight for congressional initiative in the matter of recogni-
tion was conducted by Henry Clay in the early nineteenth
century. He strongly urged that Congress should have the inter-
national competence to grant recognition by means of passing
an act to regulate trade with the new power.17 The result of his
efforts was however very limited.18
Only, on three subsequent occasions were there attempts to
accord recognition by the action of the legislature. Resolutions
were introduced in 1898 and in 1913 declaring that Cuba " and
the republican government of China,20 respectively, were ' hereby
recognised ' by the United States. In introducing the latter
resolution, Senator Bacon claimed that recognition is ' exclusively
for the determination of Congress in its capacity as the law-
making power '.21 On December 19, 1864, a resolution was
adopted in the House of Representatives which declared : ' That
Congress has a constitutional right to an authoritative voice in
declaring and prescribing the foreign policy of the United States,
as well as in the recognition of new Powers as in other matters.'23
Clay's view was, however, not without support outside the
United States Congress. In 1822, when the British Navigation
Act 23 was under consideration, there were secret doubts among
15 See Berdahl. loc. cit., pp. 530-4. In March, 1818, however, the House
rejected a motion to provide a salary for a Minister to Rio de la Plata, in
fear that recognition might be implied (Moore, Digest, vol. I, p. 82).
16 See joint resolution introduced on January 31, 1822 (Berdahl, loc. cit., p. 530);
report of Clay, Chairman of the Sen. Com'ee on For. ReL, June 18, 1836
(ibid., p. 532); resolution of the Senate, July 1, 1836 (ibid.), and resolution
of the House, July 4, 1836 (Moore, Digest, vol. I, p. 116). [In December,
1949, Secretary Acheson made it clear that there would be no recognition
of the Chinese communist Government without full congressional consulta-
tion (The Times, December 8, 1949).]
"Senate Doc. 56, p. 32; Wright, op. cit., p. 271; Berdahl, loc. cit., p. 528.
The same idea was expressed in his report of the Sen. Com'ee on For. ReL,
June 18, 1836 (Moore, Digest, vol. I, p. 97).
18 For a narration of his efforts, see Berdahl, loc. cit., pp. 527-32.
19 Ibid., p. 537.
20 Hackworth, vol. I, p. 162.
21 Ibid.
22 BerdahL loc. cit., p. 535. The resolution was lost in the Senate. For the
Claim of Congress to the power of recognition, see also Goebel, op. cit.,
n. 21, p. 15 above, pp. 195-7; MacCorkle, op. cit., n. 12, p. 107 above, pp. 13-7.
23 3 Geo. 4, c. 43.
228 Modes of Recognition
British officials whether it might not constitute recognition." As
was expected, the Spanish Government was not slow in lodging
a protest against this legislative action.25 Spain also protested
against a proposed recognition which was intimated by the United
States President in his message to Congress in March, 1822, in
response to which Congress passed an appropriation bill.
The clamour for Congressional power of recognition was due
to no small extent to the hesitancy on the part of the Executive
to assert leadership in the matter. President Monroe's attitude
towards the Latin American republics betrayed doubts as to his
own power to grant recognition without the manifest support of
Congress.26 In July, 1836, resolutions were passed by both
Houses of Congress declaring that * the independence of Texas
ought to be acknowledged '. President Jackson, however, refused
to press the question of jurisdiction. Although he intimated that
the power of recognition is only implied in the power to make
treaties and to send and receive public ministers, he was willing
to let Congress into some share of responsibility in deciding upon
recognition, as recognition might lead to war and Congress was
the body by whom alone war could be declared.27 In the recogni-
tion of Haiti and Liberia in 1861-1862,28 and of the Congo Free
State in 1884,29 the Executive department was careful to obtain
prior legislative approval. In some instances, the Executive
department even impliedly conceded the right of the legislature to
effect recognition internationally.30
The majority of American statesmen and writers have always
been inclined to the view that the Executive ought to be the
proper organ for recognition. In a cabinet discussion in January,
1819, John Quincy Adams strongly urged that the constitutional
power of recognition should be asserted by the Executive.31 In
reply to a query by the French Minister regarding a resolution in
"Planta, Under-Secretary, to Stratford Canning, May 11, 1822 (Smith, vol. I,
p. 122).
25 Ibid.
26 Berdahl, loc. cit., p. 526.
27 Ibid., pp. 532-3; Moore, Digest, vol. I, p. 99.
23 Moore. Digest, vol. I, p. 116.
"Ibid., p. 117.
30 Thus, in an instruction to Marston, United States consul at Palermo, October
31, 1848, Sec. Buchanan said that recognition may be effected 'by an Act
of Congress' (ibid., pp. 245-6). In an instruction to Mann, June 18, 1849,
Sec. Clayton wrote that, if conditions proved satisfactory, the President
will ' recommend to Congress ' the recognition of Hungary (ibid., p. 246).
31 Ibid., pp. 244-5.
By Whom Determinable 229
the House of Representatives relating to the recognition of
monarchical government in Mexico, Secretary Seward said : ' This
(i.e., recognition) is a practical and purely Executive question,
and a decision of it constitutionally belongs, not to the House of
Representatives, nor even Congress, but to the President of the
United States.' 3Z In transmitting the resolution of sympathy of
the House of Representatives of February 29, 1912, the legation
at Peking was instructed to indicate to the Chinese leaders that
the action did not amount to a recognition, which was a ' preroga-
tive of the Executive '.33 In December, 1919, a resolution was
introduced in the Senate requesting the President to withdraw
recognition of Carranza in Mexico. President Wilson protested
that the proposed action of the Congress constituted an encroach-
ment upon the Executive function.34
Any confusion or doubts as to the constitutional competence
of the Executive in matters of recognition should have been
removed by a report of the Senate Foreign Relations Committee
presented by Mr. Hale to the Senate in January, 1897. Executive
leadership in recognition was upheld as a uniform constitutional
practice. It was conclusively declared :
' The executive branch is the sole mouthpiece of the nation
in communication with foreign sovereignties. . . . Resolutions of
their legislative departments upon diplomatic matters have no
status in international law. In the department of international
law, therefore, Congressional recognition of belligerency or
independence would be a nullity.' 35
When we say that recognition is effected by the act of the
Executive, we mean the act of the Chief Executive and his repre-
sentatives.36 Acts of subordinates of the Chief Executive
presumably under his instructions may also be considered
authoritative.37 The power of recognition may be delegated by
the Chief Executive to his foreign minister and diplomatic
representatives, and occasionally to consuls and military or naval
32 Moore, Digest, vol. I, p. 246.
33 Hackworth, vol. I, p. 164.
31 Ibid. For similar views of Secretaries Hughes and Kellogg, see ibid., pp. 161-2.
33 Sen. Doc. 56, 54 Cong. 2 sess.; Berdahl, loc. cit., p. 536. For further
authorities in support of this view, see Hackworth, vol. I, pp. 162-4, vol. 4,
s. 421.
3" Wright, op. cit., p. 28.
"Ibid., p. 40.
230 Modes of Recognition
commanders,88 subject to repudiation.39 Where discretionary
authority is given in advance, the delegation must be considered
absolute.40
The attitude of Anglo-American courts with regard to the
allocation of the power of recognition may be characterised as
one of self-denial. They disclaim any share in the power for
themselves, regarding recognition as a political, rather than a
legal question to be decided by the political departments of the
government.41 As to the competing claims of the legislative and
SB This last-mentioned situation occurs more often in the recognition of belli-
gerency. See, for instance, Moore, Digest, vol. I, pp. 88, 89, where the
dealings of Spanish officials with insurgents were regarded as acts of recog-
nition. As regards delegation to diplomatic representatives, see above,
p. 121.
89 E.g., the recognition by the United States consul of the Government of
Sicily, 1837 (Moore, Digest, vol. I, pp. 112-3), the recognition by the United
States minister of the Paez Government in Venezuela, 1862 {ibid., p. 149),
and the salute by Commodore Stanton to the Brazilian insurgent navy, 1893
{ibid., p. 241), were subsequently repudiated. In two other cases — the recog-
nition of the Rivas-Walker Government in Nicaragua, 1855 {ibid., p. 141),
and the recognition of the Zuloaga Government in Mexico, 1858 {ibid.,
p." 147; McKenny case, Moore, International Arbitrations, vol. 3, p. 2882)
— although the recognitions were not disavowed, breach of diplomatic rela-
tions soon followed.
"Thus, the recognition by diplomatic representatives who use blank creden-
tials issued to them by the government would not be repudiable. See for
cases of issuance of such credentials, Moore, Digest, vol. I, pp. 147-9. See
also the case of Dudley Mann (ibid., pp. 218 ff., 246).
41 City of Berne v. Bank of England (1804), 9 Ves. Jun. 347; Dolder v. Bank
of England (1805), 10 Ves. Jun. 352; Same v. Lord Huntingfield (1805),
11 Ves. Jun. 283; The Dart and the Happy Couple (1805), Stewarts Vice-
Adm. Cas., Nova Scotia, 65; The Manilla (1808), Edw. 1; Rose v. Himely
(1808), 4 Cranch 240; The Pelican (1809), Edw. Appx. D.; Clark v. U.S.
(1811V 3 Wash. C.C. 101; Gelston v. Hoyt (1818), 3 Wheat. 246; U.S. v.
Palmer (1818), 3 Wheat. 610; The Divina Pastora (1819), 4 Wheat. 52; The
Josepha Segunda (1820), 5 Wheat. 338; Thompson v. Powles (1828), 2 Sim.
194; Taylor v. Barclay (1828), 2 Sim. 213; Williams v. Suffolk Ins. Co. (1839),
13 Pet. 415; Prize Cases (1862), 2 Black 635; Republic of Peru v. Peruvian
Guano Co. (1887), 36 Ch. D. 489; Same v. Dreyfus Bros. & Co. (1888), 38
Ch. D. 348; Jones v. U.S. (1890), 137 U.S. 202; U.S. v. Trumbull (1891),
48 F. 94; The Three Friends (1897), 166 U.S. 1; Mighell v. Sultan of Johore
[1894], 1 Q.B. 149; Underhill v. Hernandez (1897), 168 U.S. 250; Ricaud v.
American Metal Co. (1918), 246 U.S. 304; Oetjen v. Central Leather Co.
(1918), 246 U.S. 297; Agency of Canadian Car & Foundry Co., Ltd. v. Ameri-
can Can Co. (1918), 253 Fed. 152, (1919) 258 Fed. 363; The Gagara [1919],
P. 95; The Annette, The Dora [1919], P. 105; Russian Govt. v. Lehigh Valley
R.R. (1919), 293 Fed. 133, (1923) 293 Fed. 135; The Rogdai (1920), 278 F. 294;
Luther v. Sagor [1921], 1 K.B. 456, 3 K.B. 532; The Penza and the Tobolsk
(1921), 277 Fed. 91; White, Child & Beney Ltd. v. Simmons, same v. Eagle
Star & British Dominions Ins. Co. (1922), 38 T.L.R. 367; R.S.F.S.R. v.
Cibrario (1923), 235 N.Y. 255; Duff Development Co. v. Government of
Kelantan [1924], A.C. 799; Sokoloff v. Nat. Bank of N.Y. (1924) 239 N.Y.
158; Russian Re-Insurance Co. v. Stoddard (1925) 240 N.Y. 149; Lehigh
Valley R.R. Co. v. State of Russia (1927), 21 F. (2d) 396; U.S. v.
Curtiss-W right Export Corp. (1936), 299 U.S. 304; U.S. v. Belmont
(1937), 301 U.S. 324; Bank of Ethiopia v. Nat. Bank of Egypt & Liguori
[1937], Ch. 513; Banco de Bilbao v. Sancha & Rey [1938], 2 K.B. 176;
By Whom Determinable 23 1
the executive departments to the power of recognition, the English
constitutional principle of executive leadership is well established.
The American courts generally refer to the department competent
to grant recognition as the ' political department ' or simply ' the
government '. In some judgments, reference is only made to the
executive department; and where the reference is not clear, the
tone of the decisions generally indicates that the executive depart-
ment is meant. But distinctive pronouncements by the judiciary
have been rare. In the Prize Cases (1862),42 the court vindicated
the right of the President to recognise a state of civil war, without,
however, excluding the power of the Congress. In United States
v. Curtiss-Wright Export Corp. et al. (1936), the court expressly
endorsed Marshall's statement of March 7, 1800, in the House of
Representatives, that : ' The President is the sole organ of the
nation in its external relations, and its sole representative with
foreign nations.' 43 This conclusion has the support of numerous
writers.14
This conclusion also holds in Continental courts.45 But there
are instances in which the rule was not observed by German
and Italian courts.46 In one instance, the French Advocate-
General claimed the right of the court to decide upon the
Tatem v. Gamboa [1938], 3 All E.R. 135; Haile Selassie v. Cable & Wireless
Ltd. (No. 2) [1939], Ch. 182, The Arantzazu Mendi [1939], A.C. 256;
Johnson v. Briggs Inc. (1939) 12 N.Y. Supp. (2d) 60; Azazh Kebbeda Tesema
et al. v. Italian Government (1940), 7 Palestine L. Rep. 597, Annual Digest,
1938-1940, Case No. 36; Land Oberoesterreich v. Gude (1940), 109 F. (2d)
635; U.S. v. Pink (1941), 315 U.S. 203; The Maret (1946), 145 F. (2d)
431; Latvian State Cargo & Passenger 5.5. Line v. Clark (1948), 80 F. Supp.
683.
"(1862) 2 Black 635. See below, p. 394.
"(1936) 299 U.S. 304, 319.
li Phillimore, op. tit., n. 21, p. 15 above, p. 37; Bluntschli, op. cit., s. 122;
Dickinson, loc. cit., n. 20, p. 138 above, p. 118; Fraenkel, loc. cit., n. 1, p. 135
above, p. 547; Willoughby, op. cit., vol. I, p. 536.
15 Noel-Henry, op. cit., ss. 93-5; Spanish Government v. Campuzano, Sup. Ct.
of Norway (1938), 33 A.J.I.L., 1939, p. 609, Annual Digest, 1938-1940. Case
No. 27; Spanish Republican Government (Security for Costs) Case, Germany,
Ct. App. of Frankfurt-on-the-Main (1938), ibid., 1938-1940, Case No. 28;
Despa et fils v. U.R.S.S., Ct. App. of Liege (1931), ibid., 1931-1932, Case
No. 28; Harvard Research, Competence of Courts, 26 A.J.I.L., 1932, Special
Supplement, p. 505.
46 Lauterpacht, The Function of Law in the International Community, 1933,
p. 389. It may be remarked that in Diplomatic Immunities (German Foreign
Office) case (1926), decided by a German Court, the doctrine of the Court that
the opinions of the government need not be followed except in special cases
was obiter dictum, because the Foreign Office had itself refused to recognise
the diplomatic status of the defendant and had also expressly declared that
its statement need not be binding upon the court (Annual Digest, 1925-1926,
Case No. 244).
232 Modes of Recognition
question of the sovereignty of Chile, independently of the
Executive.47
§ 2. Organ for Interpretation
Although it is beyond the function of the court to determine in
what relation the State should stand towards a foreign power,
it certainly falls to the court to find out how it does stand toward
that power, to inquire what has actually been accomplished by
the political department and to decide what legal consequences
should be attributed to that which has been accomplished.
Although the acts of the political department are not open to
question, they are nevertheless open to interpretation. As there
may be various modes of recognition, and acts short of recogni-
tion, it would be necessary first for the court to inquire and
decide whether in a given case recognition had actually been
accorded. Thus, in Underhill v. Hernandez (1897)," recognition
of the Venezuelan Government by the United States was proved
by an examination of the archives of the State Department. Like-
wise, in The Manilla (1808),49 and The Pelican (1809),50 the
English court interpreted certain Orders-in-Council in order to
except certain parts of St. Domingo not ' under the dominion or
in the actual possession ' of France from enemy character, and
refused to follow the decision of The Dart and The Happy Couple
(1805),51 in condemning ships trading with these areas. Earlier,
in The Helena (1801),62 Sir William Scott (later Lord Stowell),
having satisfied himself that treaties had been entered into between
Great Britain and the Dey of Algiers, held that a ship confiscated
and sold by the latter conferred good title. In The Ambrose Light
(1885), an American court, despite a statement from the State
Department declaring that no state of war was ' in a formal sense '
being recognised, held that recognition had in fact been effected
" Matte et Ross v. La Societe des Forges et Chantiers de la Mediterrannie
(1891), 18 J.D.I., 1891, p. 868, at pp. 879-80. For the attitude of continental
and Latin-American courts generally see Lyons, loc. cit., n. 7 above.
48 (1897) 168 U.S. 250. See dictum of Fuller C.J., below, p. 393.
49 (1808) Edw. I.
50 (1809) Edw. Appx. D.
" (1805) Stewarts Vice-Adm. Cases, Nova Scotia, 65. See discussions in
Bushe-Fox, Unrecognised States: Cases in the Admiralty and Common
Law Courts, 1805-1826, 13 B.Y.I.L., 1932, p. 39, at pp. 39-40.
32 (1801) 4 C. Rob. 3.
By Whom Determinable 233
by means of diplomatic notes from the Secretary of State to the
Colombian Minister.53 In The Conserva (1889),51 Benedict J., in
refusing to deduce ' uncertain implications ' contained in the
documents issued from the State Department which was put in
evidence, stated that only a public proclamation or * some public
act by necessary implication equivalent to such a proclamation '
may be accepted as proof of recognition. But it is precisely the
function of the court to determine whether a particular act is or
is not of such a character. That this determination is by no
means easy may be shown by the case of The Cherokee Nation v.
The State of Georgia (1831).55 Here, the court had to decide
whether the acts of the executive amounted to recognition of
the Indian nation as a State. The findings of the majority and
the minority of the judges of the United States Supreme Court
were completely at odds with one another. In Murray v. Parkes
<1942) 56 an English court took great pains to show that the Eire
{Confirmation of Agreements) Act of 1938 did not constitute a
recognition of the secession of Ireland from the British Common-
wealth of Nations.57
Whether a foreign sovereign is recognised is a matter of which
the courts should take cognizance. It is 'a matter which the
Court is either assumed to know or to have the means of discover-
ing, without a contentious inquiry as to whether the person cited
is or is not in the position of an independent sovereign. Of course,
the court will take the best means of informing itself on the
subject, if there is any kind of doubt, and the matter is not as
notorious as the status of some great monarch such as the
Emperor of Germany '.ES The court may, of course, be presumed
to know treaties or government proclamations which are of public
notoriety. Less obvious acts of recognition may be ascertained,
33 (1885) 25 F. 408; Hudson, p. 187. The diplomatic notes in question are the
note of April 9, 1885, refusing to recognise the Colombian decree to treat
the insurgents as pirates (Wharton, Digest, vol. 3, p. 467), and the note of
April 24 agreeing to respect the Colombian blockade (Moore, Digest, vol. 7,
p. 812).
"(1889) 38 Fed. Rep. 431, 437; Moore, Digest, vol. I, p. 201.
" (1831) 5 Pet. 1.
st (1942) 58 T.L.R. 231; [1942] 2 K.B. 123.
*7 See also the confusion of evidence in U.S., ex rel. d'Esquiva v. Uhl (1943),
below, p. 238.
as Kay L.J. in Mighell v. Sultan of Johore [1894], 1 Q.B. 149, 161; also Duff
Development Co. v. Kelantan Government [1924], A.C. 797, 824.
234 Modes of Recognition
by an examination of public documents and archives.59 More
doubtful cases may require a clear statement from the executive.60
The earliest instance in which information was required and
supplied in the last-mentioned manner is the case of Taylor v.
Barclay decided by the Court of Chancery in 1828.61 The issue
turned upon whether the Government of Guatemala was recog-
nised by Britain. The plaintiff contended that the appointment
of consuls by Britain and the participation of British officers at
the Congress of Panama along with Guatemalan officers con-
stituted recognition. Upon communication with the Foreign
Office, however, the court was informed that recognition had not
been accorded.62
Certificates issued by the executive department, like its other
acts, are subject to judicial interpretation. In many cases, owing
to the obscurity of the language and the complexity of the facts,
interpretation is not only indispensable, but also has a decisive
bearing upon the outcome of the litigation.63 Thus, in The
Gagara (1919) the statement of the Attorney-General, which was
based upon a letter of the British Foreign Office, was to the effect
that the British Government had ' for the time being provision-
ally, and with all necessary reservations as to the future,
recognised the Estonian National Council as a de facto
independent body, and accordingly has received a certain
gentleman as the informal diplomatic representative of that
"See the American cases, Williams v. Suffolk Ins. Co. (1839), 13 Pet. 415;
Kennett v. Chambers (1852), 14 How. 38; Jones v. U.S. (1890), 137 U.S.
202; U.S. v. Trumbull (1891), 48 F. 94, Hudson, p. 822. In the last-men-
tioned case, a consular exequatur was accepted as evidence of a person's
status.
60 For various ways by which a statement from the Executive may be obtained,
see Hervey, op. cit., n. 1, p. 135 above, p. 47; McNair, loc. cit., n. 7 above,
p. 65, n. 1; Lyons, loc. cit.
81 2 Sim. 213.
*2 See examples of similar inquiries: Mighell v. Sultan of Johore [1894], 1
Q.B. 149; Duff Development Co. v. Government of Kelantan [1924], A.C.
797; Luther v. Sagor [1921], 1 K.B. 456, 3 K.B. 532; Abubakar v. Sultan of
Johore (1949), 15 Malayan Law Journal, 1949, p. 187, 16 ibid., 1950, p. 3
(communication from Colonial Office); Government of Russia v. Lehigh
Valley R.R. Co. (1919), 293 F. 133, Hudson, p. 89; Salimoff v. Standard
Oil Co. of N.Y. (1933), 262 N.Y. 220, Hudson, p. 135.
" On this subject, see Oppenheim, vol. I, s. 357a; Lauterpacht, pp. 365-8;
Lyons, loc. cit., n. 7 above. Lord Sumner observed in Duff Development
Co. v. Kelantan ([1924] A.C. 797, 824-5) that the statement from the Crown
may often be ' temporary if not temporising.' ' In such cases not only has
the Court to collect the true meaning of the communication for itself, but
also to consider whether the statements as to sovereignty made in the com-
munication and the expressions " sovereign " or " independent " sovereign
used in the legal rule mean the same thing.'
By Whom Determinable 235
Provisional Government '.64 As, in the words of counsel for the
appellant, the statement was ' deliberately ambiguous ', it fell to
the court to decide, on the basis of international law, the nature
and status of ' a de facto body ', and whether recognition could
be provisional. The court gave the answer that the sovereignty
of the Estonian National Council was, according to its interpre-
tation of the government statement, recognised to the full, and,
accordingly, its ship was immune from jurisdiction. The circum-
stances were similar in The Annette (1919).65 The Foreign Office
stated that the British Government was for the moment
cooperating with the Provisional Government of Northern Russia
and there was an exchange of representatives, but that Govern-
ment ' has not been formally recognised ' by the British
Government. The court thereupon held that the Provisional
Government was not recognised. It refused to infer from the
letter that the government had been ' informally recognised '."
The Foreign Office letter in Luther v. Sagor (1921),67 after stating
the relations between Great Britain and Russia, suggested that
the court should place its own construction upon the facts com-
municated to it.
In the more recent litigations arising out of the Italo-
Abyssinian dispute and the Spanish Civil War 1936-39, the pro-
cedure of certification has been frequently resorted to.68 In most
cases, the war was still in progress and the Foreign Office certi-
ficates indicated the recognition by the British Government of
de facto powers over limited territories, while at the same time
continuing to recognise the de jure government. The language
used in those certificates was intentionally evasive. The inter-
pretative responsibility of the court, and its discretionary power in
determining the legal consequences of the executive action were
64 [1919] P. 95, 104.
65 [1919] P. 105.
" For a comment on the freedom of the court in interpreting Foreign Office
certificates in these two cases, see Lyons, loc. cit., p. 266.
" [1921] 1 K.B. 456, 477; see below, pp. 248-9.
"Bank of Ethiopia v. National Bank of Egypt and Liguori [1937] Ch. 513;
Banco de Bilbao v. Sancha and Key [1938] 2 K.B. 176; Haile Selassie v.
Cable and Wireless, Ltd. (No. 1), [1938] Ch. 545, [1938] Ch. 839; (No. 2),
[1939] Ch. 182; The Arantzazu Mendi, [1938] P. 233, [1939] P. 37, [1939]
A.C. 256; Campania Naviera Sota Y Azner v. Ramon de la Sota (1938),
unreported (see Lauterpacht, p. 365). [See also Tallina Laevauhisus et al. v.
Estonian State S.S. Line et al. (1946), 80 Lloyd's List L.R. 99, in which the
Court received a certificate concerning the status of the Republic of Estonia
after its incorporation into the Soviet Union; and Civil Air Transport Inc. v.
Chennault (1950), n. 13b, p. 120 above, for a similar statement regarding
communist China.]
236 Modes of Recognition
consequently very great. As we have seen in the Soviet cases
discussed above, the courts seem to have held steadfastly to the
words ' recognised ' or ' not recognised ' which may have
appeared in the Foreign Office certificates, while giving little or
no weight to other circumstances related therein, such as the
exchange of representatives, cooperation in war, exemption of
the agents of the governments in question from process of law,
and the like. In the cases concerning the Abyssinian dispute and
the Spanish Civil War, however, the emphasis was shifted. In
The Arantzazu Mendi (1939) the Foreign Office letter, dated
May 28, 1938, stated, among other things, that His Majesty's
Government continued to recognise the Republican Government
as the de jure Government of Spain, that His Majesty's Govern-
ment recognised the Nationalist Government as a government
which at the time exercised ' de facto administrative control over
the larger portion of Spain ', and was not subordinate to any
other government in Spain, and that His Majesty's Government
" have not accorded any other recognition to the Nationalist
Government'.69 Apparently the judges in all three courts — the
Probate Division, the Court of Appeal and the House of Lords —
were far more struck by the second point than by the first and
third. They invariably held that, since the Nationalist Govern-
ment was recognised as a de facto government, it was entitled to
sovereign immunity. This, despite the continued recognition de
jure of the Republican Government and despite the announce-
ment of the Prime Minister in the House of Commons, ten days
before the judgment by the House of Lords (on February 23,
1939), that the Government had made ' no decision as yet on the
matter ' of ' recognising the Spanish insurgent authorities as the
de facto or de jure Government of Spain Y"
The responsibility of interpretation is even greater in cases
where the Executive department refuses to give straight answers
to questions put to it, for example, whether a certain state of inter-
national affairs has been recognised by it."
*° [1939] A.C. 258.
70 Pari. Deb., H.C., 5th Ser., vol. 343, col. 1340-1. Professor Lauterpacht thinks
that the judgment went far beyond the declared intentions of the British
Government (Lauterpacht, p. 281).
71 E.g., White, Child and Beney, Ltd. v. Eagle Star and British Dominions Ins.
Co., Same v. Simmons (1922), 38 T.L.R. 367, 373; Kawasaki Risen Kabushiki
Kaisha of Kobe v. Bantham S.S. Co. [1938], 3 All E.R. 80, [1939] 2 K.B.
544, 546.
By Whom Determinable 237
A similar procedure of certification has been followed in
American courts." The statements embodied in those documents-
have been marked by equal confusion necessitating judicial inter-
pretation. Thus, in Russian Government v. Lehigh Valley R.R.
Co. (1923), the State Department certified to the court its con-
tinued recognition of Bakhmeteff as Ambassador of Russia and
Serge Ughet as Charge d'Affaires. But in a letter to the counsel
for Lehigh, the Secretary of State admitted that ' the United States
has not recognised any other government in Russia since the fall
of the provisional government V3 It was contended for the
company that, as there was no recognised government in Russia
since the fall of the Provisional Government, it was clear that:
Bakhmeteff was not representative of any existing government.
This argument, apparently unanswerable, was rejected by the
court. 7i
The State Department certificate in Salimoff v. Standard Oil
Co. of N.Y. (1933) was a virtual invitation to the court to make
its own decision. It stated, firstly, that the United States Govern-
ment accorded recognition to the Provisional Government of
Russia, and had not recognised any government in Russia since
the overthrow of that government; secondly, that the State
Department was cognizant of the fact that the Soviet regime was
exercising control and power in the territory of the former
Russian Empire; thirdly, that the refusal of the United States to-
recognise the Soviet regime was not based on the ground that that
regime did not exercise authority in that territory.75 From this
information, the court drew the conclusion that ' the United
States Government recognises that the Soviet Government has
functioned as a de facto or quasi government since 1917, ruling
within its borders '." To this de facto government the court
attributed the power to confer title to property within its borders.
72 Ex parte Hitz (1883), 111 U.S. 766; In re Baiz (1890), 135 U.S. 403; The
Rogdai (1920), 278 F. 294, Hudson, p. 91; Russian Government v. Lehigh
Valley R.R. Co. (1919) 293 F. 133, Hudson, p. 89; (1923) 293 F. 135, 1923-
1924, Case No. 20; Lehigh Valley R.R. Co. v. State of Russia (1927), 21
F. (2d) 396, Hudson, Cases, 118; Salimoff v. Standard Oil Co. of N.Y.
(1933), 262 N.Y. 220, Hudson, p. 135. For a list of certifications by the-
State Department regarding the status of Bakhmeteff, see Guaranty Trust Co.
of N.Y. v. U.S. (1937), 304 U.S. 126, 138, n. 4. See also Lyons, loc. cit.„
n. 7 above.
73 Quoted in Jaffe, op. cit., n. 21, p. 15 above, p. 216. Italics added.
71 See criticism, ibid., pp. 213-20.
75 262 N.Y. 220, 224; Hudson, pp. 135-6.
"Hudson, p. 137.
238 Modes of Recognition
In U.S., ex rel. d'Esquiva v. Uhl (1943)," the State Department
communicated to the district court copies of documents exchanged
between it and the German Government, which led the court to
conclude that the United States had recognised the Anschluss
between Germany and Austria.78 But in a Press release, July 27,
1942, the Secretary of State declared that ' This Government has
never taken the position that Austria was legally absorbed into
the German Reich '. The Circuit Court of Appeals found the
evidence so conflicting, that it remanded the case for further
inquiry.
From the above discussion, it appears that, although it belongs
to the province of the political department to decide in what
relation the State is to stand towards other States, such decisions
remain abstract and uncertain, so far as individual litigants are
concerned. It is only through the interpretation of the court that
the nature and effect of the decisions of the political department
can be ascertained. In doing so, the court, no less than the
government, exercises great authority in determining the point
of law.79
§ 3. The De Facto Situation and the Courts
CTo say that the courts should take no part in deciding upon the
V/ political relations of the State with foreign powers (such as grant-
ing them recognition) does not mean that they should also take no
notice of the fact of the existence of a certain state of facts which
may be relevant to the case in issue.80 It is on account of this that
the doctrine of judicial self -limitation is open to criticism. Recogni-
tion by the political department only determines the question of
relations; it does not determine the question of existence.8^ The
77 (1943) 137 F. (2d) 903, Langer, op. cit., n. 28, p. 60 above, p. 171, n. 46.
78 The same conclusion was reached in previous cases : Land Oberoesterreich
v. Gude (1940), 109 F. (2d) 635; U.S., ex rel. Zdunic v. Uhl (1941), 46 F.
Supp. 688.
79 See Lyons, loc. cit., n. 7 above. •
80 See Note, loc. cit., n. 69, p. 185 above, p. 609.
81 Pound C.J. said in Salimojf v. Standard Oil Co. of N.Y.: ' The Courts
may not recognise the Soviet Government as the de jure government until
the State Department gives the word. They may, however, say that it is
a government maintaining internal peace and order, providing for national
defence and the general welfare, carrying on relations with our own government
and others ' (Hudson, p. 137; quoted with approval in W erf el v. Zionostenska
Banka (1940), 23 N.Y.S. (2d) 1001, Annual Digest, 1938-1940, Case No. 32).
Also Inland Steel Co. v. Jelenovic (1926), 84 Ind. App. 373, 376, Annual
By Whom Determinable 239
political department is just as incompetent to determine the
question of existence 82 as the courts are incompetent to determine
the question of relations. The fields are well marked; the action
of one in the sphere of the other need not be binding on the
latter.83 [It is not necessary that the mere fact that the govern-
ment did not recognise a foreign power should imply that the l^
courts should take no notice of its existence.84 Nor is it necessary
that the relations with a foreign power unrecognised by the
government should be altered because the courts had taken
cognizance of its existence.fJJ The objection raised by Noel-
Henry 86 that, if the courts may determine the fact of existence,
it would mean that all governments which exist have an inter-
national right to be recognised is probably based upon this
misunderstanding. (^Recognition, as here understood, is a matter */
of policy, not an obligation in international law. The action of
the courts would, in any case, have no international standing.
This follows inevitably from the premise that the judicial depart-
ment is not the representative organ of the State in international
relations.8^
When it is a question whether a government authority rules
over a particular territory, or whether a state of civil war exists
in a foreign country, the courts may regard it as a matter of fact,
to be proved in accordance with the usual rules of evidence. Such
Digest, 1925-1926, Case No. 343; see Dickinson, loc. tit., n. 27, p. 138 above,
p. 217; Werenjchik v. Ulen Contracting Corp. (1930), 229 App. D. 36, 240,
N.Y.S. 619, Annual Digest, 1929-1930. Case No. 19, Dickinson, ibid., p. 234;
Wulfsohn v. R.S.F.S.R. (1923), 234 N.Y. 372, Green, op. tit., n. 7, p. 141 above,
No. 35; Russian Re-Insurance Co. v. Stoddard (1925), 240 N.Y. 349, Cases,
pp. 165-6; Baty, n. 21, p. 15 above, p. 226.
82 Oddly enough, Marshall C.J. remarked in U.S. v. Palmer (1818), 3 Wheat.
610, 635, where civil war is recognized, ' such unacknowledged State . . .
may be proved by such testimony as the nature of the case admits '.
83 Le Normand (op. tit., n. 1, p. 14 above, p. 279) says that the court cannot
undo juridically what the government did politically, and vice versa.
81 Such as in City of Berne v. Bank of England (1904), 9 Ves. Jun. 347.
85 The Belgian Foreign Minister declared in the Belgian Senate, April 6, 1933 :
' If the Belgian Courts, judging in the plenitude of their independence,
decided that Russian legislations today can produce certain effects in Belgium,
the government has not seen in that fact any opposition to the policy of
non-recognition of the Government of the Soviet Union which it has
followed' (Jessup, Has the Supreme Court Abdicated One of its Functions?
40 A.J.I.L., p. 168, at p. 171).
86 Noel-Henry, op. cit., n. 29, p. 139 above, s. 80.
87 In The Santissima Trinidad (1822), 7 Wheat. 283, 299, it was, however, held:
' It is no answer to the reclamation of a foreign sovereign to say that he
has been injured by the judiciary only. To him all the departments of the
government make but one sovereignty.' [See Schwarzenberger, op. cit.,
n. 57, p. 22 above, with regard to State responsibility for acts of judicial
State organs, pp. 238-40.]
240 Modes of Recognition
evidence may be procured from all available sources, of which
the executive department is the most authentic and most authori-
tative, but not necessarily the exclusive one.88 Borchard main-
tains that only in doubtful cases where there are more than one
claimant need the executive department be resorted to.89
The view here set forth undoubtedly runs counter to the
traditional doctrine of judicial self-limitation built up by Lord
Eldon and Chief Justice Marshall in the Anglo-American
decisions. But the first cases in which that doctrine was
formulated do not seem to warrant the absolute character which
was later attributed to it. In City of Berne v. Bank of England
(1804), for instance, the question of the right to sue was regarded
as one of comity, not of existence.90 It would have been sufficient
to say that, in the absence of authorisation from the government,
the comity did not exist, without having to make the more sweep-
ing statement that the court may not even ' take notice ' of the
unrecognised government.91
The American formulation of the doctrine is found in the oft
quoted dictum of Marshall C.J. in Rose v. Himely (1808),92
when he stated :
' It is for the governments to decide whether they will consider
St. Domingo as an independent nation, and until such decision
shall be made, or France shall relinquish her claim, courts of
justice must consider the ancient state of things as remaining
unaltered, and the sovereign power of France over that colony
as still subsisting.'
It is believed that the emphasis on this passage by later decisions
88 See, however, below, p. 250, n. 50.
80 Borchard, loc. cit., n. 11, p. 99 above, p. 266.
00 Above, pp. 135-8.
91 (1804) 9 Ves. Jun. 347, 348. It has been pointed out that the fact that Lord
Eldon was a member of the government, as well as a judge, explains the
reason of this special caution (Lyons, loc. cit., n. 7, p. 225 above, p. 245).
Political considerations had prevented him from stating in consistent terms
what the court can know and what it cannot judicially know without govern-
ment authorisation. His statement in Dolder v. Bank of England (1805),
10 Ves. Jun. 352, quoted above, p. 135, is not merely contradictory to his
statement in the City of Berne case, but also leaves unexplained why,
while he could know of the existence of revolutions in Switzerland in
absence of government certification, he could not of his own knowledge
take notice of the new government (Lyons, ibid., p. 246). However, as a
matter of history, it was in City of Berne v. Bank of England that the prac-
tice of requiring Foreign Office certification for proof of the existence of
foreign States, governments, and the like was first introduced {ibid., p. 248).
"(1808) 4 Cranch 240, 272.
By Whom Determinable 241
has been somewhat misplaced. The question of the independence
of St. Domingo, even if material to the decision, was certainly not
the main ground upon which the judgment was based. The case
concerned the validity of the condemnation by a French court
of an American vessel captured ten leagues from the coast of St.
Domingo for violation of French laws forbidding trade with
St. Domingo, which was then in revolt against the French
authorities. The condemnation was effected while the ship was
in a Spanish port. The main questions were, first, whether
capture beyond territorial limits was lawful; secondly, whether
the French court, in condemning a prize lying in a foreign port,
was exercising jurisdiction recognisable in international law.
Regarding the first point,93 the legality depended upon whether
the capture was made in exercise of right of war or in exercise of
the pacific right of sovereignty." Since the French laws on which
the sentence was based purported to be territorial, it was held
that the capture was made in exercise of domestic sovereignty, '
and so invalid on the high seas.95
Curiously, Marshall C.J., while insisting that the question of
independence should be decided by the government, did not
hesitate to pronounce that ' A war de facto then unquestionably
existed between France and St. Domingo '.96 It is not shown that
his acknowledgment of the existence of civil war was the result
of the determination of the government. It seems that Marshall
had considered the court competent to take notice of the existence
of a civil war, despite the absence of action by the American
Government. Even in the matter of independence, if ' France
shall relinquish her claim ', the court may give effect to the fact
without awaiting action by its own government.97 This is quite
different from the strict doctrine of judicial self-limitation, of
which it is supposed to be the origin. Having regard to the cir-
83 The second point is irrelevant to the present discussion. It was held that
the proceedings were ex parte and invalid (p. 279). But this ruling was
overruled in Hudson v. Guestier, La Font v. Bigelow (1808), 4 Cranch 293,
295.
"(1808) 4 Cranch 240, 279.
95 Ibid., pp. 272-6. Johnson J., dissenting, argued that the capture was an
exercise of belligerent right, and that the nature of the capture was not
affected by the fact that France limited its exercise to two leagues from
the coast (ibid., p. 289).
"Ibid., p. 271.
"See Jaffe, op. cit., p. 131.
16
242 Modes of Recognition
cumstances of these two earliest cases (City of Berne v. Bank of
England (1804) and Rose v. Himely (1808)), it is doubtful whether
they have said all that has been attributed to them, at least with
all the rigidity and comprehensiveness with which the doctrine is
characterised.
The rationes of the doctrine, though not deducible from
these two cases, however, found expression in subsequent judg-
ments and writings of international lawyers. Hervey 88 mentions
four reasons behind the doctrine :
(a) That the function of recognition is vested by the Constitu-
tion in the political departments." It was said in The Rogdai
(1920) that, in extending recognition, ' the voice of the Chief
Executive is the voice, not of a branch of government, but of the
national sovereignty, equally binding all departments \l Yet it
is not necessary to conclude that this function of recognition
includes the determination of international facts incidental to a
strictly private litigation.
(b) That sound policy and reason require that the court
should act in unison with the political department in matters
involving foreign relations.2 Why? Because, suggests Noel-
Henry, it would strengthen the hands of the executive in its deal-
ings with foreign States.3 But, it may be doubted, is it the
legitimate function of the court to make itself the instrument of
foreign policy? Even if it were, it can achieve very little in the
exercise of that function. As is well said by Dr. Mann :
' It is believed that where recognition is felt to be in fact
redundant by the foreign power, the attitude of the British Judici-
ary will not make it necessary or desirable, and, conversely, that
where a foreign non-recognised government feels recognition to
be necessary or desirable, judicial recognition in England will not
make its efforts redundant.' 4
98 Op. cit., p. 52. His order is not here followed.
99 Foster v. Neilson (1829), 2 Pet. 253, 307, 309; Oetjen v. Central Leather Co.
(1917), 246 U.S. 297, 302.
1 278 F. 294, Hudson, p. 92. See also Weston, Political Questions, 38 H.L.R.
1924-1925, p. 296, at pp. 318-9.
'Taylor v. Barclay (1828) 2 Sim. 213, 221; Foster v. Globe Venture Syndicate
Ltd. [1900], 1 Ch.D. 811, 814; Oetjen v. Central Leather Co. (1917), 246
U.S. 297, 304; The Rogdai (1920), 278 F. 294, Hudson, p. 92; Ex parte Muir
(1921), 254 U.S. 522, 533. See also McNair, loc. cit., n. 7, p. 225 above, p. 65;
Weston, loc. cit., p. 319.
3 Noel-Henry, op. cit., s. 85.
4 Mann, Judiciary and Executive in Foreign Relations, 29 Grotius Transactions,
1944, p. 143, at pp. 157-8.
By Whom Determinable 243
In the American cases regarding the Litvinov Assignment,5 the
United States Supreme Court has gone to great lengths in affirm-
ing the doctrine of judicial subordination to executive policy. It<^— -
has virtually ousted a well-established principle of the unenforce-
ability of foreign fiscal or penal laws,' for the purpose of
implementing a policy of recognition.7 In England, the courts
refused to go that far. In a case concerning the existence of war
between China and Japan, to the argument that the court ought
to follow the decision of the Executive in order not to cause
embarrassment, Sir Wilfrid Greene, M.R., replied: 'I do not
myself find the fear of the embarrassment of the Executive a
very attractive basis upon which to build a rule of English law.' *
Some writers fear that the desire to avoid embarrassing the
Executive by allowing it to say the last word on an international
situation might misfire and result in real embarrassment in a
situation in which the Executive would much rather remain
silent.9
(c) That the court is unfit to determine a question of indepen-
dence, because it is political in nature.10 If by this is meant that
the court has no means of deciding in what relation, in con-
sequence of such independence, the State should stand towards
the power in question, the argument can be readily admitted.
But if it is meant that the court has no means of acquiring
knowledge of the existence of a certain state of affairs in the
world, it is denying the usefulness of the ordinary rules of
evidence.
(d) That the court has no means of enforcing its decision in
case of an adverse judgment. It is true that the court cannot send
or receive diplomatic representatives or make treaties or perform
6 U.S. v. Belmont (1936), 301 U.S. 324; U.S. v. Pink (1941), 315 U.S. 203. Cf.
also U.S. v. New York Trust Co. (1946), 75 F. Supp. 583; A/S Merilaid & Co.
v. Chase Nat. Bank of N.Y. (1947), 71 N.Y.S. (2d) 377.
8 Habicht, The Application of Soviet Laws and the Exception of Public Order,
31 A.J.I.L., 1937, p. 245.
7 In 17.5. v. Pink it was said that the Assignment was 'part and parcel' of
the policy of recognition and that it was within the power of the President
to remove all obstacles to full recognition ((1941) 315 U.S. 203, 227, 229).
8 Kawasaki Kisen Kabushiki Kaisha of Kobe v. Bantham S.S. Co. [1939], 2K.B.
544, 552.
9 Mann, loc. cit., p. 163.
"Kennett v. Chambers (1852), 14 How. 38, Hudson, p. 138, at p. 141;
Republic of Peru v. Peruvian Guano Co. (1887), 36 Ch.D. 489, 497.
244 Modes of Recognition
any of the other actions which are the usual means of giving
effect to a decision to recognise. But this is not what an adverse
finding by the court would involve. The enforcement of its
judgment would involve nothing more than the enforcement of
any judgment in private litigation, namely, the enforcement upon
persons and property within its jurisdiction. In this sense, it may
sometimes happen that there is greater difficulty of enforcement
by following the Executive lead than by giving an independent
judgment.11
The dominating influence of the Eldon-Marshall tradition in
Anglo-American courts has been greatly affected by several
important departures. In Consul of Spain v. La Conception
(18 19),12 Johnson J. held that, although the courts must consider
a government recognised by their own government as independent,
courts ' exercising jurisdiction of international law may often be
called upon to deduce the fact of national independence from
history, evidence or public notoriety where there has been no
formal public recognition '." In Yrissari V. Clement (1826),14
Best C.J. maintained, likewise, that ' the existence of un-
acknowledged States must be proved by evidence V5 ' History,
evidence and public notoriety ', were admitted as evidence in
The Helena (1801),16 and The Charkieh (1873).17 In the more
recent litigations in the United States concerning the unrecognised
Soviet Government, the American courts have placed themselves
in an impossible position through the rigid application of the
Eldon-Marshall doctrine, and the rediscovery of Johnson and
Best no doubt gave them immense relief.18
Johnson J.'s opinion in Consul of Spain v. La Conception
(1819) brings out two points of fundamental importance: What is
the scope of judicial competence in the administration of inter-
11 There is the possibility that such judgments would be liable to be invalidated
in foreign States (Noel-Henry, op. cit., s. 98).
12 Fed. Cas. No. 3137, 2 Wheel. Cr. Case (1819), 597. See Jaffe, op. cit., p. 133.
The principle was approved by Story J. in the Sup. Ct. (1821) 6 Wheat. 235,
though the decision was reversed on other grounds.
13 See above, p. 89.
"(1826) 3 Bing. 432.
"Ibid., p. 438. See also Kinder v. Everett (1823), The Times, December 22,
1823, and Revenga v. Mackintosh (1824), 2 B. & C. 693, below, p. 313.
"(1801) 4 C. Rob. 3, 5.
17 (1873) L.R. 4 A. & E. 59.
"Above, p. 171.
By Whom Determinable 245
national law, and to what extent are acts of the Executive
concerning international relations conclusive upon the courts?
In England and in the United States, the law of nations is
regarded by the courts as part of the law of the land.19 But courts
applying principles of international law, apply only those prin-
ciples that are adopted by English and American law.20
The Constitution of the United States contains express
authorisation for the application of conventional international
law.21 In Anglo-American jurisprudence international law is
assumed to have been incorporated 22 unless it comes into direct
conflict with positive rules of national law.23
A national court, being a creature of its national juridical
system, cannot, naturally, go beyond the limits of competence
prescribed by its creator. It is not entitled, therefore, to
administer that part of international law which its juridical system
reserves to be applied by other, that is political, organs of the
State. By this we mean decisions on questions concerning rela-
tions between State and State. The court cannot, for instance,
refuse to respect the status of a foreign diplomatic agent received
by the political department 24 ; nor can it accord him status where
his reception has been refused.25 It cannot declare invalid a
treaty which is voidable in international law, until it has been
"Scott, The Legal Nature of International Law, 1 A.J.I.L., 1907, p. 831,
esp. at p. 852 et seq., and authorities therein cited; Picciotto, The Relation
of International Law to the Law of England and of the United States, 1915.
20 Willoughby, The Legal Nature of International Law, 2 A.J.I.L., 1908, p. 357.
See on this subject, Moore, The Relations of International Law to National
Law in the American Republic, 9 Proceedings, 1915, p. 11; Wilson, The Rela-
tions of International Law to National Law in the American Republics,
ibid., p. 23.
21 Article VI (2) of U.S. Constitution. Similarly, the French Constitution of
1946, Articles 26, 28. The whole body of international law has been received
into the following Constitutions: German Constitution of 1919, Article IV,
112 B.F.S.P., 1919, p. 1063; Austrian Constitution of 1920, Article IX, 113
ibid., 1920, p. 884; Spanish Constitution of 1931, Article I (7), 134 ibid., 1931,
p. 1141; Basic Law for the Federal Republic of Germany, 1949, Article 25.
See also Cavar6, La Reconnaissance de I'Etat et la Mandchoukouo,
42 R.G.D.I.P., 1935, p. 1, at p. 77.
M West Rand Central Gold Mining Co. v. The King [1905], 2 K.B. 391, 406-7;
Rose v. Himely (1808), 4 Cranch 240, 276.
23 Chung Chi Cheung v. The King [1939], A.C. 160, 168; The Nereide (1815), 9
Cranch 388, 422; Hilton v. Guyot (1894), 159 U.S. 113, 163; Mortensen v.
Peters 14 S L.T.R. 227; (1906) 8 Fraser 93. See Holland, Studies in Inter-
national Law, 1898, p. 199; Picciotto, op. cit., pp. 125-6; Cobbett, vol. I,
pp. 19-21.
21 Engelke v. Musmann [1928], A.C. 433.
"Ex parte Hitz (1883), 111 U.S. 766; In re Baiz (1890), 135 U.S. 403; Re Cloete,
Ex parte Cloete (1891), 65 L.T. 102.
246 Modes of Recognition
denounced by the government.26 Likewise, a court cannot deny
the title over a territory which is claimed by the government.27
Conversely, if a person is received as a foreign diplomatic agent,
or a treaty is denounced by the Executive department, the court
would be obliged to act in accordance with international law in
conceding diplomatic immunities or denying rights under the
treaty, as the case may be. A national court 2S does not possess
the power to examine the international legality of the acts of the
Executive department. It merely applies the principles of inter-
national law to a situation of fact, based upon the assumption of
the validity of the act of the sovereign. It interprets the act of the
Executive in terms of international law and attributes to it such
consequences as according to international law must follow.
Thus, it would give effect to the legal consequences of war
declared by the government, even if that war is itself an aggressive
and illegal war. It would give effect to the annulment of a treaty
by the government, even if the annulment were internationally
wrong.29
Thus, it may be seen that, While a national court does not
act upon international law with a view to producing an inter-
national effect, it does, nevertheless, give effect to international
law upon the basis of acts of the Executive department with
respect to questions brought before it.30 Within such limitations
26 Charlton v. Kelly (1913), 229 U.S. 447, 476.
"Janes v. U.S. (1890), 137 U.S. 202.
28 The English Prize Court under Lord Stowell and Dr. Lushington had claimed
the right to review acts of the government according to the standards of
international law. See, for instance, The Juffrow Maria Schroeder (1800),
3 C. Rob. 147, 155. This view is opposed by Holland (op. cit., p. 199).
Johnson J. suggests that the function of the Prize" Court is not to revise
the act of the sovereign himself, but only to revise that of his agents and
to ensure that his authority is not being incorrectly employed (dissenting
opinion in Rose v. Himely (1808), 4 Cranch 240, 282). In The Zamora
[1916], 2 A.C. 77 it was held by the Judicial Committee of the Privy Council
that a Prize Court, though a national court, is set up for the purpose of
administering international law. It has the right to examine the international
validity of the acts of the Executive, though subject to the enactments of the
Legislature, in which case it would be administering municipal rather than.
international law.
"Chae Chan Ping v. U.S. (1888), 130 U.S. 581, 600. Likewise, in Regnault v.
Rousski-Renault Co., decided by the Ct. of App., Paris (1926), it was held
that a notice of suspension of treaty by the government was binding upon
the court, and no inquiry could be made as to its legality in international
law (53 J.D.I., 1926, p. 671). French courts generally refuse to interpret
treaties, but follow the interpretations of the government (Noel-Henry,
op. cit., s. 60).
80 See Project VII, Article 6 of the American Institute of International Law
(20 A.J.I.L., 1926, Special Supplement, p. 312).
By Whom Determinable 247
the administration of international law by the national court is
very real. This is precisely the position taken by those who seek
to curtail the doctrine of judicial self-limitationT)
It is not urged that the court should take upon itself the task
of granting recognition; it is merely maintained that, without
deciding upon questions concerning the relations of the State of
the forum with foreign States, the court may not ignore certain
facts before it (including the international acts of the Executive)
incidental to private litigation, the significance of which are
defined by international law. In cases where no question of inter-
national relations is involved, the court may proceed to make its
own finding of fact, in spite of a divergence of view with the
Executive.31 Even Lord Sumner, who in Duff Development Co.
v. Government of Kelantan (1924),32 upheld the conclusiveness of
the Executive certificate, conceded that a different principle should
be adopted in cases where no direct act of the Crown is involved^)
Commenting on Foster v. Globe Venture Syndicate Ltd. (1900),33
his lordship thought that the question of boundaries should be
treated differently from a question of independence. He criticised
Farwell J. for having relied upon the dictum of Shadwell V.-C.
in Thompson (sic; should read Taylor) v. Barclay (1828) that
' The Courts of the King should act in unison with the Govern-
ment of the King '.34 He considered this to be ' rather a maxim
of policy than a rule of law '.35 Continuing, he argued :
' The frontiers of foreign countries are matters of geography,
not always involved with matters of State. . . . Hong Kong, for
example, has been spoken of judicially as if it were a Chinese
port: Nobel's Explosives Co. v. Jenkins & Co.36 It does not,
however, follow that, on mere questions of this kind, resort ought
to be had to the Foreign Office, or that its answer, if given, must
necessarily be taken to be correct in fact. ... I think such boun-
31 Thus, in Tartar Chemical Co. v. U.S. (1902) (116 Fed. 726, cited in Jaffe,
op. cit., p. 231), the court refused to accept the interpretation by the Executive
that the word ' France ' in a treaty does not include Algeria.
32 [1924] A.C. 797.
33 [1900] 1 Ch. 811. The question was whether the Suss district was within
the territory of Mexico.
31 2 Sim. 213, 221.
35 [1924] A.C. 797, 826.
36 (1896) 1 Com. Cas. 436, 439.
U-"
248 Modes of Recognition
daries, where no acts of the Crown with regard to them have been
involved, must depend on evidence given in the ordinary way.' 37
In The Jupiter (No. 3) (1927), on the question whether a
revolutionary government exercised authority in Odessa at a given
date, the Court relied upon evidence, without consulting the
Foreign Office.38 In a case concerning the purchase of silver by
the United States Treasury from the Republican Government of
Spain, the American court held that the acts of the Secretary of the
Treasury were not binding upon the court in a controversy as to
the validity of a purchase of property which did not affect the
international or diplomatic relations of the United States.39
^There is, therefore, evidently room for believing thatfan cases
V in which the relations of the State of the forum with other States
are not directly affected, a question as to the existence of inter-
national facts may be treated as properly falling within the
judicial, rather than the political, function. This view has been
given much expression in American cases concerning the Soviet
Government?5^)
Although it is true that the question of the existence of a State
or government or civil war may be judicially determined by the
ordinary method of evidence, the best evidence would, no doubt,
be a statement from the political department in charge of foreign
relations.41 Such information is authoritative to the point of being
conclusive as to fact but may leave the court to draw its own
conclusion as to law." This is peculiarly an English doctrine, not
shared by American courts. Thus in Luther v. Sagor (1921) the
Foreign Office letter of November 27, 1920, after stating its assent
to the immunity of M. Krassin and to the claim that the Soviet
Government was a ' State Government of Russia ', and that the
British Government had ' never officially recognised ' that
" [1924] A.C. 797, 826-7.
38 [1927] P. 122, 146-51. See also R. v. L. J. de lager (1901), 22 Natal L.R. 65;
[1907] A.C. 326, as regards the extent of enemy penetration into Natal.
39 Banco de Espana v. Federal Reserve Bank of N.Y., Same v. U.S. Lines Co.,
Same v. Solomon (1940), 114 F. (2d) 438, Annual Digest, 1938-1940, Case
No. 6, p. 14.
"° E.g., dictum of Lehman J., in Russian Re-Insurance Co. v. Stoddard (1925),
240 N.Y. 149, quoted in Werenjchik v. Ulen Contracting Corporation (1930)
229 App. Div. 36, 37, above, p. 152. See also above, Part 3, ch. 11.
■" Lord Sumner in Duff Development Co. v. Kelantan Government [19241.
A.C. 797, 824.
■*2 Sir Arnold McNair, Legal Effects of War, 1948, p. 343.
By Whom Determinable 249
Government, disclaimed any intention to decide the question of
law.43 The Court, thereupon, held that the Soviet Government
could not be treated as sovereign."
White, Child and Beney Ltd. v. Eagle Star and British
Dominions Ins. Co. (1922) is remarkably illustrative of the
principle here set forth.- When asked the crucial date on which
the Soviet Government ascended to power in Russia, the Foreign
Office declined to express any opinion as to the actual date,
observing that * the question being also questions of fact for the
Courts to determine on the evidence laid before them '." <$o also
in The Arantzazu Mendi (1939), the Foreign Office, after stating
the relation in which the British Government stood towards the
Nationalist Government in Spain, declined to decide whether that
body was a sovereign government;4,'1 Similarly in Kawasaki Kisen
Kabushiki Kaisha of Kobe v. Bantham S.S. Co. (1939),47 the
Foreign Office declined to state whether war existed between
China and Japan in 1938, and suggested that the attitude of the
government may not be conclusive on the interpretation of the
word * war ' in the charter-party in question. It was pointed out
by Sir Wilfrid Greene, M.R., that the question was different from
one in which the relations of the State of the forum is in issue.
Here the question was solely of the existence of a fact, of which
the recognition by the government was unnecessary. He there-
fore held war to be in existence, despite the lack of recognition
by the Foreign Office. In Bank of Ethiopia v. National Bank of
Egypt and Liguori (1937) " Clauson J., after stating that the act
of a recognised government cannot be impugned, observed in an
obiter dictum that such treatment should also apply ' to any acts
of that government done at any time at which, on the facts proved
before me, they were in fact the government, though not yet
" [1921] 1 K.B. 477. It is thought by a recent writer, however, that the state-
ment of the Foreign Office regarding M. Krassin as one who ' should be
exempt from the process of the Courts ' came very close to the
American practice of ' suggestions ' of the State Department (see Lyons,
loc. cit., n. 7, p. 225 above, p. 267). See also Lipstein, loc. cit., n. 42, p. 159
above.
*4At pp. 477-8. The Foreign Office letter in The Annette [1919] P. 105 was
similar, but that in The Gagara [1919] P. 95 seemed to have overstepped
these bounds in suggesting that the provisionally recognised Estonian
National Council was entitled to set up a Prize Court.
45 (1922) 38 T.L.R. 367, 371; above pp. 181-2.
"[1938] pp. 233, 242-3, [1939] A.C. 256, below, pp. 320-3.
" [1939] 2 K.B. 544, 553.
"[1937] Ch. 513, 519.
V
250 Modes of Recognition
recognised as such by His Majesty ' (italics added). In Tallinna
Laevauhisus Ltd. v. Estonia State Shipping Line (1946) the
Foreign Office stated that the extinction of the Republic of
Estonia was recognised, but that ' the effect of such recognition
and in particular the date to which it should be deemed to relate
back appear to me to be questions for the Court to decide in the
light of statements set out above and of the evidence before it '."
The doctrine of judicial self-limitation means, then, in England
that, while the statement of the political department as to what
has transpired between it and foreign powers and to the state of
international facts must be regarded as conclusive evidence,50 the
political department seldom claimed, nor did the courts concede,
the right to decide the legal implications of such facts.51
If the certificate of the political department is evidence of
fact, it would be conclusive as to what has taken place in matters
peculiarly within its knowledge, but not as to the conclusion of
49 (1946) 79 Lloyd's List L.R. 251.
50 In Duff Development Co. v. Kelantan Government (1924) the Lords were
not agreed on this point. Viscount Finlay said : ' Such information is not
in the nature of evidence; it is a statement by the Sovereign of this country
through one of his Ministers upon a matter which is peculiarly within his
cognizance' ([1924] A.C. 797, 813). Lord Sumner, on the other hand, was
of the view that, while the act of recognition is an act of sovereignty, and
persons so recognized must be treated as sovereign in English courts, a
statement regarding the recognition is merely the ' best evidence ' of the
fact of recognition, although, when such evidence is advanced, no other
evidence would be admissible (at p. 824).
sl In Engelke v. Musmann (1928) the Attorney-General stated: 'It is admitted,
however, that such a statement (by the Foreign Secretary concerning diplo-
matic status) is conclusive upon the question of diplomatic status alone;
and it is still for the court to determine as a matter of law whether the
diplomatic status having been conclusively proved, immunity from process
necessarily follows-' ([1928] A.C. 433, 436). In the Parlement Beige ((1879)
4 P.D. 129; (1880) 5 P.D. 197) the Admiralty Advocate contended that the
Crown's declaration that a ship was entitled to immunity was conclusive.
The contention was tacitly rejected by the court, which went on to decide
the question for itself. Brett L.J., even expressed doubt whether ' if her
Majesty chose thus to recognise as ambassador a person who had not been
sent by any foreign government he could claim the privileges of an ambas-
sador' (5 P.D. 198). See, however, the contrary view of Viscount Finlay
in Duff Development Co. v. Kelantan Government: 'There is no ground
for saying that because the question involves considerations of law, these
must be determined by the courts. The answer of the King, through the
appropriate department, settles the matter whether it depends on fact or
on law' ([1924] A.C. 797, 815). This case was followed by the Court of
Appeal in R. v. Bottrill, ex parte Kuechenmeisfer [1947] 1 K.B. 41, confirming
Goddard L.C.J. [1946], 1 All E.R. 635, 636. For comments on the conclu-
siveness of the British Foreign Office certificate, see Feller, Procedure in
Cases Involving Immunity of Foreign States in Courts of the United States,
25 A.J.I.L., 1931, p. 83, at pp. 84, 90; Lauterpacht, pp. 365-8, and The Form
of Foreign Office Certificates, 20 B.Y.I.L., 1939, p. 125; Lyons, loc. cit.,
p. 240.
By Whom Determinable 251
the legal consequences implied therein. Often, however, there
are cases in which the communication from the political depart-
ment to the court contains partly facts, and partly its conclusions
regarding these facts. English courts have nevertheless accepted
these conclusions without inquiring whether, basing their
decisions upon these facts, they would themselves arrive at these
conclusions. Thus, in The Annette (1919) and Luther v. Sagor
(1921) (in the court of first instance), while denying recognition,
the Foreign Office stated that there had been co-operation and
exchanges of representatives with the entities in question. In
Luther v. Sagor it was further admitted that the Soviet representa-
tive was accorded exemption from legal process, and that the
Soviet claim to be the State government of Russia was assented
to.52 The court refused to consider whether these facts, also
authoritatively testified by the Foreign Office, might not be given
the same weight as the Foreign Office statement of non-recogni-
tion. In The Arantzazu Mendi (1939) if the Foreign Office certi-
ficate really meant that the Nationalists had been ' recognised ' as
a State government, the Foreign Office had certainly contradicted
itself by saying that it also recognised the Republican Govern-
ment as the de jure Government of Spain.53 But the court was
content to accept the conclusion on the recognition of the
Nationalists, without regard to other facts set forth in the
certificate.
/The danger of executive inroads into questions of law through
the^acceptance of its conclusions as to fact is clearly illustrated
in Duff Development Co. v. Kelantan Government (1924)5<ir)
Here, the respondent, the Sultan of Kelantan, claimed sovereign
immunity. A letter from the Colonial Office stated that the
British Government did not exercise or claim any right of
sovereignty or jurisdiction over Kelantan, and that the Sultan
' generally speaking exercises without question the usual attributes
of sovereignty V* Documents enclosed in the letter showed that
Kelantan was formerly a dependency of Siam, who transferred all
her rights over Kelantan to the British Government, and that
by an agreement with Britain the Sultan surrendered his power of
52 Above, p. 248.
"Above, p. 236.
54 [1924] A.C. 797.
S5Ibid., pp. 806-7.
252 Modes of Recognition
foreign relations and engaged himself to follow ' in all matters
of administration ' the advice of a British adviser.56 Here, the
agreement was an act of State in the international sphere. The
letter from the Colonial Office was neither an act of recognition,
nor even a statement that an act of recognition had taken place.
It was pointed out by counsel for the appellant that such a
statement could not be presumed to have the same authority as
the agreement itself, and it was urged that the court should be
fully competent to decide for itself what the legal implications
of the agreement were, without having to follow the construction
given to it by the Colonial Office.57 It is indeed difficult to under-
stand the purpose of appending the agreement if no other
construction was allowed to be placed upon it than that given by
the Colonial Office. If the court was denied the right to dispute
the interpretation of the Colonial Office, it must be because the
Colonial Office determined the question, not only of fact, but
also of law.58 In the recent case R. v. Bottrill, the Foreign Office
interpreted the Berlin Declaration to mean that the State of
Germany continued to exist. The applicant's argument that the
Declaration, being an act of sovereignty, should have priority
over the Foreign Office certificate was overruled.59
In arguing that a dependent people ought not to be regarded
as sovereign under international law, it is not suggested that a
State should under no circumstances waive its right of jurisdiction
unless so required by international law. Every State is free to
decide for itself what persons, apart from those designated by
international law, are entitled to jurisdictional immunity. There
56 [1924] A.C. 797, p. 807.
"Ibid., pp. 800-1.
58See dictum of Viscount Finlay, ibid., p. 815, quoted above, n. 51. In a
closely similar case, Mighell v. Sultan of Johore [1894], 1 Q.B. 149, Willis J.
examined both the Colonial Office certificate and the treaty with the Sultan,
although this method was not adopted in the higher court (p. 153), [see also
Abubakar v. Sultan of Johore (1949), p. 42 above, n. 52]. The artificiality
of the executive decision was stretched to breaking point in Statham v.
Statham and Gaekwar of Baroda [1912], P. 92. Here, the India Office
admitted that the Gaekwar was 'not independent', and that the King of
England exercised over him ' such of the rights and powers of territorial
sovereignty as have by treaty, usage, or otherwise passed to and are exer-
cised by the suzerain' (p. 95. Italics added). In 1874, the then reigning
Gaekwar was brought to trial and deposed by the British Government
(p. 94). The court, nevertheless, held that the Gaekwar ' by international
law' was not liable to suit in English court. See also the French case,
Government of Morocco and Maspero v. Laurens (1930), Annual Digest,
1929-1930, Case No. 75.
59 [1947] 1 K.B. 41, 50. See above, pp. 70-1.
By Whom Determinable 253
can be no objection if the British Government, Parliament or
Courts should decide that certain of its subject peoples should be
immune from the jurisdiction of the court. But such immunity is
not immunity according to international law. It is one thing to
accord immunity on the grounds of sovereignty, and quite another
to accord it as a matter of internal legislation.60 In the latter
case, no recognition as an independent State need be implied.
To return to the question of certification, jt may be observed
that the British practice, on the whole a sound one, is to treat
the certificate from the Executive department as an essential piece
of evidence on certain points of fact which are peculiarly within
its knowledge, but the legal significance of the testimony and its
relevancy to the case would have to be determined by the
judiciary. If the judiciary once begins to defer its own conclu-
sion in favour of that of the political department, there will be
danger of the courts substituting the criterion of policy for the
criterion of law.
This possibility has been ominously foreshadowed in the trend
of American decisions. It has steadily been held since Ex parte
Muir (1921),61 that, if a claim to immunity by a foreign State is
' recognised and allowed ' by the State Department, it is incumbent
upon the court to grant the immunity automatically without
further inquiry.82 In making the decision the Executive does not
act as mere conduit, but is assuming a judicial or quasi-judicial
function 63 from which the Court is ousted.
60 In the United States, a State of the Union (Monaco v. Mississippi (1933),
292 U.S. 313) and the territory of Hawaii (Kawanawakoa v. Polyblank
(1906), 205 U.S. 349, 353) could not be sued without their consent. In
Sullivan v. State of Sao Paulo, Same v. State of Rio Grande do Sul (1941),
122 F. (2d) 255, Annual Digest, 1941-1942, Case No. 50, constituent States
of a foreign federated State were also accorded immunity in the United
States (see Lyons, loc. cit., n. 7, p. 225 above). Continental authorities are
against immunity (Annual Digest, 1941-1942, pp. 187-8; also Feller, loc. cit.,
p. 92, n. 65). Practice in American courts regarding immunity of political
subdivisions lacks uniformity (see cases cited in Moran, Notes, Immunity
of a Foreign Sovereign from Suit: What is a Sovereign State? 26 Cornell
L.Q., 1940-1941, p. 727, at pp. 729-30). See Hackworth, vol. 2, pp. 401-3,
and Harvard Research, Competence of Courts, 26 A.J.I.L., 1932, Special
Supplement, pp. 480-8, for cases and doctrines expressing differing points
of view. For comments against immunity, see 40 Mich. L.R., 1940-1941,
pp. 912-3; 55 H.L.R., 1941-1942, p. 149.
61 (1921) 254 U.S. 522. See comments in Feller, loc. cit., p. 83.
62 See Compania Espanola v. The Navemar (1937), 303 U.S. 68, 74.
63 See Notes — Immunity from Suit of Foreign Sovereign Instrumentalities and
Obligations— 50 Yale L.J., 1940-1941, p. 1088, at p. 1093. Sometimes the
Executive has made outright demands for dismissal of suit: The Schooner
Exchange v. M'Faddon (1812), 7 Cranch 116. Where the State Department
254 Modes of Recognition
Executive determination of questions of law has also been
upheld in cases involving the enforceability of foreign legislation.
In one case the court was asked by the Executive to sustain a
' freezing decree ' of the Netherlands Government on the ground
of the United States policy of co-belligerency." In two cases
concerning the Litvinov Assignment,65 the United States Supreme
Court upheld the view that the formulation of public policy by
the State Department can change a judicial question into a
political one, in which the public policy of the government should
prevail.
The facts show obviously that the practice of the United
States has been to give precedence to the views of the Executive
whenever a case involves elements of foreign relations. There
is no question that a statement from the government should be
treated as authoritative as regards its relations with certain
persons, or States, or Governments, such statement being a state-
ment of fact. But it is quite another matter for the government
to say that, given such facts, such persons, States, or Govern-
failed to ' recognise and allow ' a claim of immunity (Compania Espanola
v. The Navemar, supra; Lamont v. Travelers Ins. Co. (1939), 281 N.Y. 362,
34 A.J.I.L., 1940, p. 349, Annual Digest, 1938-1940, Case No. 73; Ex parte
Republic of Peru (1943), 318 U.S. 578, 588), it has generally been held that
the court should be entitled to decide upon the merit of the claim. See,
however, criticism of Lamont case by Deak {The Plea of Sovereign Immunity
and the New York Court of Appeals, 40 Col. L.R., 1940, p. 453). In some
other cases it has been held that the court may not accord immunity where
it is not ' recognised and allowed ' by the State Department : The Pesaro
(1920), 255 U.S. 216, 219; Republic of Mexico v. Hoffmann (1945), 324
U.S. 30, 36, 42. See criticism of the latter decision by Jessup (loc. cit.,
n. 85, p. 239 above, p. 168). It was inferred from those cases that the mere
fact of the transmission of the claims of foreign States to the court by the
Department implied recognition and allowance of the claim: Miller v.
Ferrocarril del Pacifico de Nicaragua (1941) (Maine) 18A (2d) 688, Annual
Digest, 1941-1942, Case No. 51, p. 195. In Sullivan v. State of Sao Paulo,
supra, the Cir. Ct. of App., 2nd Cir., however, held that, while accepting the
accuracy of the facts recited in the certificate from the State Department,
the court had the right to judge on questions which were not political
(ibid., 1941-1942, pp. 186-8). In The Anghyra (1941), A.M.C., 1495, Annual
Digest, 1941-1942, p. 223 n., a Virginian Court, notwithstanding suggestions
from the State Department, held that the immunity should be denied, upon
the evidence that at the time of the alleged requisition, the vessel was in
the possession of the United States Marshal. For a discussion of all these
cases, see Lyons, loc. cit.
64 Anderson v. N. V. Transandine Handelmaatschappij (1941), 28 N.Y.S. 2d. 547,
(1942) 31 N.Y.S. (2d) 194 (263 App. Div. 705), 289 N.Y. 9, Annual Digest,
1941-1942, Case No. 4. Commented on with approval by Kuhn, The Effect
of a State Department Declaration on Foreign Policy upon Private Litiga-
tion— the Netherlands Vesting Orders, 36 A.J.I.L.," 1942, p. 651; see also
Lyons, loc. cit., pp. 137, 146.
65 U.S. v. Belmont (1936), 301 U.S. 324; U.S. v. Pink (1942), 315 U.S. 203,
229-30. [See also U.S. v. N.Y. Trust Co. (1946), 75 F. Supp. 583, and AjS
Merilaid & Co. v. Chase Nat. Bank of N.Y. (1947) 71 N.Y.S. (2d) 377.]
By Whom Determinable 255
ments ought to be immune from jurisdiction. Despite disclaimers
by the Executive of any intention to decide upon questions of
law,66 by dictating the consequences of its relations with foreign
powers it has no doubt made important inroads into the function
of the court. From a realistic point of view, it may perhaps be
convenient to gear the judiciary to active diplomacy. But, from
a realistic point of view also, it may be doubted whether it might
not be wiser, after all, to retain an independent judiciary as a
possible refuge from embarrassing claims of foreign States which
the Executive has no intention of conceding. The normal process
of international affairs requires exhaustion of local remedies as a
preliminary to intervention through the diplomatic channel.67
The direct intervention of the Executive would leave nothing
between it and the unpleasant consequences of a negative
decision.
•» In Sullivan v. State of Sao Paulo (1941), the Court remarked that the Depart-
ment's refusal to recognise its own suggestion as a conclusion of law ' can
hardly be more than modest concern not to usurp the constitutional function
of the courts' {Annual Digest, 1941-1942, p. 185; see Lyons, loc.cit., pp. 133-4).
47 Jessup, loc. cit., p. 169.
PART FTVB
QUALIFIED RECOGNITION
CHAPTER 16
REVOCABILITY OF RECOGNITION
AS recognition, according to the declaratory view, is an
- acknowledgment by an old State of the fact of the existence
of a new State or government, it is not an act requiring continuous
action, but an act consummated the moment it is accomplished.1
The existence once acknowledged is acknowledged; there is
nothing to withdraw, unless, perhaps, the acknowledgment is a
mistake in fact. A State or government in possession of the
essential requirements of statehood or governmental capacity
exists, and continues to exist, independently of recognition or
the 'withdrawal' of recognition. The disappearance of any or
all of these requirements terminates the existence of the State
or government. But such termination of existence is neither the
cause nor the result of the termination of recognition. Taking
notice of the non-existence of the formerly existing entity by a
foreign State is a fresh act of acknowledgment of a new fact,
and not the withdrawal of the previous recognition.2
If, according to the constitutive view, a State becomes a
subject of international law through recognition, it may be sup-
posed that it would be open to the recognising State to withdraw
its recognition, and thereby to outlaw, excommunicate and to
put to legal death a life which it has once created.3 Such a theory,
if maintained, would be placing a premium upon aggression. It
would enable an aggressor State to avail itself of the law of the
jungle by first depriving its victim of the protection of inter-
national law.* There is therefore no greater threat to international
'Erich, loc. cit., n. 21, p. 15 above, p. 487; below, p. 396.
2 Tallinna Laevauhisus v. Estonian State S.S. Line (1946), 80 Lloyd's List L.R.
99; Kelsen, loc. cit., n. 8, p. 14 above, p. 613. This distinction is not always
observed. See Lauterpacht, pp. 350-1; B. and Others v. Bank of Spain
(Burgos) (1939), Ct. of App., Paris, Annual Digest, 1919-1942 (Supplemen-
tary Volume), Case No. 42.
'Williams points out that, under the constitutive theory, it would also be
possible for the ' derecognised ' State to ' derecognise ' the ' derecognising '
State (Williams, loc. cit., n. 29, p. 36 above, p. 61).
1 On November 18, 1936, the German and Italian Governments withdrew
recognition of the Spanish Republican Government and commenced to treat
259
260 Qualified Recognition
legal order than the unrestricted notion of the revocability of
recognition. It is believed that no constitutive writer is
thoroughgoing enough to pursue his logic to such an extreme.
[It must not be forgotten, however, that the withdrawal of recog-
nition may also be used ' in the case of persistent violations of
International Law by a State. It could be conceived that the
international society retaliates by a conscious and collective act
. . . equivalent to the outlawry of the delinquent State. . . . Such
a step could be taken collectively at an international conference,
... or individually by the members of the international society.' 5
Obviously the simplest method of outlawing a State which per-
sistently violated the principles of international law would be
' by a withdrawal of its recognition as a subject of International
law.'] 8
The impossibility of the situation calls for a modification of
the constitutive view. This comes in the form of the suggestion
that, while recognition is revocable, the revocation must be con-
ceived not as an arbitrary act of policy, but as one of application
of international law, ' namely, as a declaration that the objective
requirements of recognition have ceased to exist.' 7 This sugges-
tion no doubt eliminates the possibility of abuse, but is highly
detrimental to the constitutive theory. To make the legality
of withdrawal dependent upon the non-existence of the objective
requirements of international law is tantamount to making the
effect of withdrawal dependent upon such non-existence itself. In
it as rebels (Padelford, International Law and Diplomacy in the Spanish
Civil Strife, 1939, p. 16; Spanish Republican Government {Security for Costs)
Case (1938), German Ct.' of App. of Frankfurt-on-the-Main, Annual Digest,
1938-1940, Case No. 28; Survey of International Affairs, 1937, vol. 2,
pp. 256-7). In 1931 Japan threatened to withdraw recognition from China
in order to evade her duties under the Covenant of the League (L.o.N.
Off. J. (1932), pp. 383, 384). On November 30, 1940, Japan withdrew recog-
nition of the Government of Chiang Kai Shek in China by signing a treaty
• with the ' Government * of Wang Ching Wei (The Times, December 2,
1940).
6 [Schwarzenberger, International Law and Totalitarian Lawlessness, 1943,
pp. 99-100.]
• [Ibid., p. 105.]
7 Lauterpacht, p. 349. [See, for example, the Note addressed by the Soviet
Government to the Nationalist authorities in Canton at the time of the
Soviet recognition of the communist Government in China : ' Owing to events
that have occurred in China which have brought about profound changes in
the military, political and social life of the country, as a result of which
the Chinese People's Republic has been formed and a Central People's
Government of China has been set up, the Government . . . located in
Canton has ceased to exercise power in the country, has become a provincial
government of Canton, and has lost the right to maintain diplomatic relations
with foreign States on behalf of China . . .' {The Times, October 3, 1949).]
Revocability of Recognition 261
other words, withdrawal of recognition is conceived as nothing
more than the registering of the fact that these requirements have
ceased to exist. Such a view of the revocability of recognition
is scarcely distinguishable from the declaratory view.8
^Another suggestion is that, while de jure recognition is defini-
tive, de facto recognition may be subject to revocation.' The u
difficulty in maintaining this view lies in the fact that the dis-
tinction between dejure and de facto recognition is political
rather than legal.10J(From the legal point of view, de facto
recognition is as Much evidence of the existence of the State or <-
government as is de jure recognition. The evidence continues
to be valid so long as the fact it purports to testify persists^ If
it turns out that the State or government recognised no longer
exists, the evidence of existence must be revised or withdrawn,
whether that evidence has been provided by means of de facto /
or de jure recognition.11 An example of the withdrawal of de
jure recognition may be found in the withdrawal of the recognition
of the Rivas Government of Nicaragua by the United States on
the dubious ground that the authority of that Government had
been contested.12 On the other hand, in withdrawing the de
facto recognition of the Armenian Republic of 1920, the United
States Government made it clear that it was because 'the
Armenian Republic has ceased to exist as an independent State.'1*
It may be said that the withdrawal of recognition, in the sense
of an acknowledgment of the termination of the existence of
States or governments, makes no distinction between de jure and
de facto recognitions^
The acknowledgment by a State of the disappearance of foreign
entities often finds outward expression in overt acts of the State,
such as the termination of diplomatic relations. These overt
8 Above, p. 259. Withdrawal of recognition in this sense is merely the
reverse application of the general principle of recognition. See Le Normand,
op. tit., n. 1, p. 14 above, p. 206, and Schwarzenberger, op. tit., pp. 100-1.
•Erich, loc. cit., pp. 487-8; Williams, loc. tit., p. 67; Noel-Henry, op. tit.,
n. 29, p. 139 above, s. 54; Scelle, op. tit., n. 20, p. 15 above, vol. I, p. 103.
This also seems to be the view of the Institute of International Law (Resolu-
tion of 1936. 30 A.J.I.L., 1936, Supplement, p. 186).
10 Below, p. 288.
11 Kelsen. loc. tit., p. 613.
12 Moore. Digest, vol. I, p. 143. The recognition was accorded in May, 1856,
a previous recognition in 1855 having been disavowed (ibid., p. 141). The
action was criticised by Baty (Baty, loc. cit., n. 49, p. 66 above, p. 483). [For
other possible cases, see Schwarzenberger, op. cit., pp. 102-4.]
13 Hackworth, vol. I, p. 222.
[/
262 Qualified Recognition
acts have sometimes been regarded as the withdrawal of recog-
nition itself. Although it may be right to say that the continued
maintenance of diplomatic relations presupposes continued
recognition, the converse is, however, untrue. A State may decide
to discontinue relations with another, without the slightest doubt
of the latter's existence. Many cases described as ' withdrawals
of recognition ' in reality belong to this category."
Sometimes, though rarely, what is described as a withdrawal
of recognition is in fact a repudiation of recognition. In such a
case, there is legally no recognition ab initio. It may have arisen
out of unauthorised actions of government officials or the mis-
appreciation of facts. Once the misadventure has been discovered
and the action disavowed, the recognition must be regarded as
having never been accorded. Disavowals of unauthorised
recognition have occurred several times in American diplomatic
history.15 The only instance which the present writer is able to
call to mind illustrative of the latter situation is the withdrawal
of the British recognition of the Italian Government in Ethiopia.1'
What can be the explanation of the British action? The
official justification was that the entry of Italy into the war
liberated Great Britain from her former undertakings.17 It is
doubted, however, whether recognition is in the nature of an
agreement and whether it is automatically terminable by war.
Another explanation is that the destruction of the object of the
previous recognition, which was the achievement of a general
peace settlement, by the entry of Italy into the war justified the
British withdrawal.18 This, too, can hardly be maintained. The
only legitimate consideration for the withdrawal of recognition is
11 See cases cited in Lauterpacht, pp. 354-5. [See also Schwarzenberger, op.
cit., pp. 103-4, concerning relations between France and Finland, 1918-1919.]
15 See above, p. 230, n. 39.
18 See Azazh Kebbeda Tesema v. Italian Government (1940), Palestine Sup.
Ct., 7 Palestine L. Rep. 597, Annual Digest, 1938-1940, Case No. 36. [Cf.,
however, British statements concerning Austria; On March 16, 1938, Viscount
Halifax announced : ' H.M.G. . . . recognise that the Austrian State has now
been abolished as an international authority.' In the Moscow Declaration,
November 1, 1943, the British Government announced: 'They regard the
annexation imposed upon Austria by Germany on March 15, 1938, as null
and void' (see Langer, op. cit., n. 28, p. 60 above, pp. 174-182). It is
doubtful, however, how far either of these instances may be compared to
the American cases quoted above.]
17 Under-Sec. of State Butler, statement in the House of Commons, June 19,
1939 (Pari. Deb., H.C., 5th ser., vol. 362, col. 139).
18 Lauterpacht, p. 356.
Revocability of Recognition 263
the disappearance of the requirements of statehood or govern-
mental capacity. The motives or objects of the original diplomatic
act embodying the recognition ought not to be taken into con-
sideration. The British recognition of the United States was said
to be a price paid in exchange for peace.19 It cannot be suggested
that Great Britain was entitled to withdraw this recognition on the
ground that the United States had made war against her, as
in 1812.
The British action was, however, not without exonerating
circumstances. The authority of Emperor Haile Selassie in
Ethiopia had been reduced to such a point that its elimination
might be considered as almost complete, had the development
not been interrupted by the outbreak of the European war. It
might be argued on behalf of Britain that her previous
recognition was based upon her appreciation of the fact of the
disappearance of the Ethiopian authority. But, to be logically
consistent, she would have to adhere to the conclusiveness of
the recognition of the Italian Government, and to regard all acts
of that Government in Ethiopia prior to its eventual and complete
overthrow as acts of the de jure Government. Haile Selassie,
in order to have his acts recognised in England as acts of the
ruler of Ethiopia, would be obliged to win his title by conclu-
sively ousting the previous de jure government of Italy. This
position was apparently not taken by the British Government.
The withdrawal of the recognition of the Italian conquest of
Ethiopia20 took place quite some time before the effective rule
of Italy over Ethiopia was actually overthrown." The position
of the British Government must therefore be interpreted in the
light of an admission of an error of judgment, a disavowal of
the previous act of recognition, and a confirmation of the con-
tinuation without break of the de jure authority of Haile Selassie,
hampered temporarily by the military occupation of Italy. [In
fact, this was clearly recognised in the 'Notes on Policy and
Practice in respect of Occupation of Italian East Africa ' issued
by the Chief Political Officer, Middle East Forces, on February 8,
1941. Paragraph 6 of this document stated: 'As His Majesty's
19 Moore. International Adjudications, vol. 3, p. 303.
20 As evidenced by the letter of the High Commissioner of Palestine, November
30, 1940, in Azazh Kebbeda Tesema v. Italian Government, supra.
21 Italian resistance in East Africa did not end until November 28, 1941. See
Woolbert, The Future of Ethiopia, 20 Foreign Affairs, 1941-1942, p. 535.
264 Qualified Recognition
Government have withdrawn their recognition of the Italian
conquest, it may be correct to say that de jure any part of Ethiopia
which is cleared of the enemy comes ipso facto and at once under
the rule of the Emperor.' In practice, however, it was necessary
for Ethiopia to be placed under the interim control of the British
military authorities.] "
'[Lord Rennell, British Military Administration in Africa, 1941-1947, 1948,
pp. 45-6, 61-7.]
CHAPTER 17
CONDITIONAL RECOGNITION
According to Hall, conditional recognition may be one of two
kinds: a recognition attached with conditions precedent, or a
recognition attached with conditions sub modo. In the former
case, recognition may be withdrawn on the ground of the non-
fulfilment of the conditions; in the latter case, violation of the
terms merely entitles the recognizing power to enforce them by
means of a rupture of diplomatic relations or intervention.1
Most cases which have been mentioned under the heading
of conditional recognition are in reality recognitions sub modo.
Recognised powers thereby undertake to carry out certain
obligations accepted at the moment of recognition. Those
obligations may include the maintenance of a perpetual neutrality,2
abstention from the slave trade,3 the adoption of certain forms
of government,4 the accordance of most-favoured-nation treat-
ment,5 the retention of capitulatory privileges,11 the maintenance
of a regime of free trade,7 the respect of private property,8 the
1 Hall, p. 113. A similar distinction is made by Rivier, who, however, restricts
the term 'conditional recognition' to the former case, and calls the latter
'recognition accompanied by a mode' (op. cit., n. 23, p. 15 above, vol. I,
p. 60; approved in Moore, Digest, vol. I, pp. 73-4). Also Nys, loc. cit., n. 21,
p. 15 above, p. 296.
2 See Article 7, Treaty of London, November 15, 1831, with respect to the
neutralisation of Belgium (18 B.F.S.P., 1830-1831, p. 651).
3 See British recognition of Brazil (Smith, vol. I, p. 186) and Texas (ibid.,
p. 249).
* The recognition of the Czechoslovak Government by Britain, July 18, 1941,
was accompanied by the undertaking to submit to a democratic constitution
(Lauterpacht, p. 358). In return for recognition by the United States, the
Solorzano Government in Nicaragua pledged itself on December 12, 1924,
to hold fair elections (Hackworth, vol. I, pp. 193-4). [See also the decision
of the Crimea Conference, February, 1945, concerning British and American
recognition of the Polish Government (Cmd. 7088 (1947), para. 7).]
"See American recognition of Albania and Egypt in 1922 (Hackworth,
vol. I, pp. 192-3).
• See American recognition of Egypt (ibid.).
7 See Article I of the General Act of Berlin, 1885, regarding Free Trade in
the Congo (Hertslet, Map of Africa by Treaty, 1894, vol. I, p. 24).
•See United States recognition of the Busch Government in Bolivia, 1937
(Hackworth, vol. I, p. 228).
265
266 Qualified Recognition
guarantee for specified treatment of minorities,' and other under-
takings of a political or commercial nature.10 Such a recognition
sub modo is not ' conditional recognition ' in the strict sense of
the word. It is neither suspensive nor resolutory. Failure to
discharge the obligations attached does not affect the recognition,
which is an act accomplished beyond redemption. As evidence
of the fact of the existence of a State or government, recognition
is irrevocable. The consequence of non-fulfilment of ' conditions '
is rather like the non-fulfilment of other obligations accepted
after recognition, the enforcement of which, whether taking the
form of a diplomatic rupture or some forcible measure, does not
affect, as it cannot affect, the legal personality of the entity
recognised.11 These ' conditions ' are practically indistinguishable
from undertakings accepted by States as agreed arrangements
for the renewal of diplomatic relations previously severed. Such
considerations have led many writers on international law to the
conclusion that there is no such thing as ' conditional recogni-
* By the Treaty of Berlin, 1878, the new States therein recognised were placed
under special obligations regarding minorities. See Articles 5, 27, 35, 44 of
the Treaty (69 B.F.S.P., 1877-1878, p. 749). See also the post-war treaties
of 1919: Versailles Treaty, Article 86 (De Martens, N.R.G. 3e ser. XI (1923)
400); Treaty of St. Germain, Article 51 {ibid., p. 706), Article 57 (ibid., p. 707)
and Sect. V (ibid., p. 709).
10 The Soviet Government, in consideration for United States recognition,
gave assurances regarding the prevention of subversive activities against the
United States, the protection of religious rights of American citizens in
Russia, the right of legal protection and the right to obtain economic
information, see documents in 28 A.J.I.L., 1934, Supplement, p. 1 et seq.
It was with reference to these ' conditions ' that the United States Supreme
Court said: 'Recognition is not always absolute; it is sometimes conditional'
(U.S. v. Pink (1942), 315 U.S. 203, 229). Yugoslavia in 1919 (Hackworth,
vol. I, p. 221) and Armenia in 1920 (ibid., p. 222) were recognised by the
United States on the condition that the question of frontiers be left for
future settlement. Similarly, the British recognition of Finland (Lauterpacht,
p. 361). In 1922, Lithuania was recognised de jure by_ the Conference of
Ambassadors on the condition that she accept the provisions of the Treaty
of Versailles (Articles 331 to 345) concerning the navigation on the River
Niemen (Hackworth, vol. I, pp. 201-2).
11 See Hyde, 1st ed., vol. I, s. 38, quoting Oppenheim, 2nd ed., vol. I, s. 73 (this
reference is omitted from Hyde, 2nd ed.); Williams, La Doctrine de la Recon-
naissance en Droit International et ses Developpements Recents, 44 Hague
Recueil, 1933, p. 203, at p. 262; Article 6 of the Resolution of the Institute of
International Law, 1936 (30 A.I.I.L., 1936, Supplement, p. 186. Possibly the
reference here is to the de jure recognition alone). In 1935, the United
States protested to the Soviet Union against breach of conditions of recog-
nition regarding attacks on the United States economic and social systems.
But the United States did not regard the recognition as rescinded (Garner,
U.S.A. and Soviet Union— A Protest, 17 B.Y.I.L., 1936, p. 184). The fact
that terms can be exacted from and accepted by a new entity prior or at the
time of recognition is positive proof that it had juridical existence indepen-
dently of recognition.
Conditional Recognition 267
tion'.13 Nys boldly declares that 'conditional recognition' is
a legal impossibility.13
It is perhaps not justifiable to come to such a conclusion
without an examination of a further group of cases which are
more in conformity with Rivier's definition of 'conditional
recognition '. This includes cases where conditions precedent
are attached to the recognition, without the fulfilment of
which the recognition does not take effect. This is not to be
confused with cases where demands are made prior to any recog-
nition. In these latter cases, recognition only takes place after
the demands have been satisfied; otherwise, there would be no
recognition at all.11 The class of cases under consideration,
however, is one in which recognition is actually accorded, but
is supposed to be accompanied by a suspensive condition. Since
recognition is not a juristic act creating legal effects, theoretically
there can be no such case. The point is brought up only to be
refuted. An example that comes nearest to this kind of recog-
nition may be found in the recognition of Latvia by Germany in
1920. In the Convention of July 15, 1920, between the two States,
Germany declared her readiness to recognise Latvia de jure as
soon as one of the Principal Allied and Associated Powers,
signatories of the Treaty of Versailles, had so recognised.15 Those
who regard as a distinctive feature of de facto recognition the
circumstance that it may have conditions attached to it are
12Goebel, op. cit., n. 21, p. 15 above, p. 65; Lauterpacht, pp. 362-4, and
authorities cited therein. See also Project II, Article 6, of the International
Committee of Jurists (22 A.J.I.L., 1928, Special Supplement, p. 240) and
Article 6 of the Montevideo Convention, 1933 (28 A.J.I.L., 1934, Supple-
ment, v. 76), which declare that recognition is ' unconditional and irre-
vocable'.
13 Nys, loc. cit., p. 297.
14 In 1824, France suggested to Colombia that she would recognise the latter
upon the condition of the latter's establishing a monarchy (Wharton, Digest,
vol. I, pp. 524-5). In 1830, Great Britain offered to recognise Dom Miguel
on the condition that the latter granted an amnesty to his political opposi-
tion (Smith, vol. I, p. 178). In 1913 and 1921, respectively, the United
States proposed to recognise the Huerta and Obreg6n Governments in Mexico
upon the latter's complying with certain demands (Hackworth, vol. I, pp. 257,
261). In March, 1946, the United States notified the Government of Bulgaria
that it could not expect to be recognised unless two members of the opposi-
tion were included in the Government (The Times, March 11, 1946). [In
April, 1948, President Truman promised recognition to the new King of the
Yemen if he would pledge himself to fulfil the 1946 Yemeni- American treaty
of commerce and friendship, ' such assurance would accomplish recognition '
(United States Information Service, Release, April 22, 1948).]
15 113 B.F.S.P., 1920, p. 1059.
268 Qualified Recognition
perhaps inclined to include de facto recognition so conceived as
frequent examples of ' conditional recognition '."
In cases where a suspensive condition is attached to an
act of recognition, the recognition, in the sense of a mental
apprehension of the existence of a fact, must be considered as
having been accomplished at once, although recognition, in the
sense of an initial step in the establishment of political relations,
may be regarded as having been suspended pending fulfilment
of the condition. A State recognising another conditionally is,
in effect, saying: Mentally, I appreciate your existence, but I
shall not say so, nor take any step to establish relations with you
upon the basis of that existence, until such-and-such a condition
has been met. The mental appreciation of a fact cannot be
subject to conditions. To say that a State or government might
exist at a future date or upon the materialisation of certain events
is to say that it does not exist.17 Hence, to say that the existence
of a State or government cannot be mentally apprehended until
a certain condition has been met is, for the moment, at least, a
refusal to recognise."
On the other hand, if the recognising State has, by its act of
recognition, clearly indicated its apprehension of the existence
of the recognised State or government, the evidence of the exist-
ence of that State or government must be considered as having
been established, although there may be no intention to establish
political relations. Legal consequences of such existence must
necessarily follow, even if the condition for recognition may not
have been met. Courts which hold that the municipal effects of
de facto recognition are the same as those of de jure recognition
in certain matters19 must have regarded the evidence of the exist-
ence of the new State or government as having been conclusively
16 Below, p. 280 et seq.
17Baty: 'It is impossible to recognise a fact conditionally. Either it is a fact
or it is not. The very essence of recognition is that the recognising State
thereby declares that it has satisfied itself that the recognised authority pos-
sesses the distinguishing marks of a State. To say that one recognises that
it has them, subject to their being subsequently proved, is a contradiction of
terms. To say that one recognises that it has them, subject to its conduct
being satisfactory in other particulars, is sheer nonsense. It is like telling
a pupil that her sum is right if she will promise to be a good girl ' (Baty, lap.
cit., n. 49, p. 66 above, p. 470). [Cf., American recognition of the King of
Yemen, n. 14 above.]
18 Le Normand, op. cit., n. 1, p. 14 above, p. 240.
19 Below, pp. 283-4.
Conditional Recognition 269
borne out by the de facto recognition, whatever conditions may
have been attached to it.
In conclusion, it may be said that 'conditional recognition'
is a misuse of terms. A recognition subject to the materialisation
of uncertain future events may be regarded, so far as legal conse-
quences are concerned, as a simple recognition or as no recog-
nition at all, according to whether the act indicates that in the
mind of the recognising State the object of recognition had
existence. A recognition sub modo is legally possible, but the
non-fulfilment of its terms does not affect the juridical existence
of the body recognised. Whatever their views of the legal
significance of conditional recognition, international lawyers are
unanimous in condemning the practice of States in exacting
special privileges from nascent States or governments in con-
sideration for recognition.20 Whether it be called ' conditional
recognition' or political blackmail, the practice is equally
objectionable, for the reason that it pollutes from the very outset
the atmosphere of international friendship, which it is the avowed
purpose of recognition to build and to consecrate.
20 Above, pp. 126-7. Lauterpacht, pp. 32-8, 360-2; Le Normand, op. cit., p. 244.
CHAPTER 18
DE FACTO AND DE JURE RECOGNITION
The confusion which envelops the question of de facto recognition
is due not so much to the unsettled state of the principle involved,
as to the nebulous nature of the term.1 Referring to this question,
Borchard said: 'The subject has been unduly complicated by
chameleonic uses of the term de facto, which has been applied
promiscuously to de facto authorities in the field, to governments
not established by constitutional methods, and as an adjective
to qualify recognition. . . .' la The clarification of terminology
must be regarded as the first step towards the understanding of
the question.2 For this purpose it is necessary to draw distinctions
between the notions of de facto government in the constitutional
law sense, de facto government in the international law sense,
and de facto recognition. Not infrequently the terms ' de facto
recognition ' and ' recognition as (or of) a de facto government '
have been used indiscriminately to cover all three notions, thereby
giving rise to infinite confusion. It is believed that, once the
difficulties of distinctions and terminology are overcome, the
principles would emerge of themselves.
§ 1. The International and the Constitutional Sense
of the Term
The terms 'de jure' and ' de facto' recognition had already
come into Anglo-American terminology by the time of the revolt
1 The vagueness of the term ' de facto recognition ' has been a constant source
of irritation to international lawyers. See, for example, Erich, loc. tit., n. 21,
p. 15 above, p. 484; Kelsen, loc. cit., n. 8, p. 14 above, p. 612; Scelle, op. tit.,
n. 20, p. 14 above, vol. I, p. 102; Lauterpacht, p. 329; Briggs, De Facto and
De Jure Recognition: The Arantzazu Mendi, 33 A.J.I.L., 1939, p. 680,
at p. 689; Noel-Henry, op. cit., n. 29, p. 139 above, s. 54.
la Borchard, Review of Stille, Die Rechtsstellung der de-facto-Regierung in der
englischen und amerikanischen Rechtsprechung, 1932, 26 A.J.I.L., 1932, p.
926, at p. 927.
2 In the First Assembly of the League of Nations, one delegate suggested that
the term ' de jure recognition ' should be defined. The suggestion was, how-
ever, not acted upon (L.o.N. Records of First Assembly, Plenary Meetings
(1920), pp. 578, 623, 636).
270
De Facto and De Jure Recognition 271
in Spanish America. A British Foreign Office instruction for
the British plenipotentiary at the Congress of Verona, dated
August 8, 1822, distinguished between three stages of recognition:
' 1st. The Recognition de facto which now substantially subsists.
2nd. The more formal Recognition of Diplomatic Agents. 3rd.
The Recognition de jure, which professes to decide upon the Title,
and thereby to create a certain Impediment to the assertion of the
Rights of the former Occupant.' 2a At about the same time,
President Monroe in his message to Congress declared that the
policy of the United States in regard to Europe was ' to consider
the Government de facto as the legitimate Government for us \3
In 1829, in an instruction to the American diplomatic represen-
tative in Colombia, Secretary Van Buren said : ' So far as we are
concerned, that which is the Government de facto is equally
de jure.' 3a
By themselves, the terms ' de jure ' and ' de facto ' can, no
doubt, with equal propriety, be used with reference to constitu-
tional law as well as international law. In the constitutional law
sense, a ' de jure government' is synonymous with 'legitimate'
or ' constitutional ' government; while a ' de facto government ' is
equivalent to an ' actual ' or ' usurping ' government. In the
days of hereditary rulers, the constitutional legality of a govern-
ment carried with it a certain measure of legality in international
law. A ruler, deprived of actual control of his country, would
nevertheless remain the de jure sovereign, while persons carrying
on the actual administration would be regarded as 'usurpers',
both constitutionally and internationally.4 With the decay of
the doctrine of dynastic legitimacy in constitutional law, con-
stitutional legality is no longer made the test of the international
title to govern. There can be no a priori claim; the title to rule
is to be determined by the fact of actual governing. Hence the
constitutional law test of legality should have no significance
whatever in the consideration of international recognition.5 Since
2a Smith, vol. I, p. 125.
3 Quoted in Williams, loc. tit., n. 29, p. 36 above, p. 60.
3a Wharton, Digest, vol. I, p. 530.
4 See Grotius, op. tit., Bk. 1, Ch. IV, ss. 15-9.
5 Noel-Henry, op. tit., n. 29, p. 139 above, s. 2; de Visscher, Les Gouvernements
Etrangers en Justice, 3 R.I., 1922, p. 149, at p. 156; Rougier, op. tit., n. 2,
p. 97 above, p. 496, n. 1. However, in Bernard's widely quoted definition,
constitutional legality still seems to be the distinguishing feature of a de jure
government : 'A de jure government is one which, in the opinion of the person
272 Qualified Recognition
the terms " de jure ' and ' de facto ' have reference to constitutional
law only, it has been suggested that the distinction should be
disregarded in the question of international recognition."
The alternative to abolishing the terms altogether in all
references to the question of recognition is to use it in the inter-
national law sense. International law, in order to prevent a legal
vacuum, recognises the necessity of treating a government already
established as representing the State, although its authority may
be at times partially and temporarily undermined by insurgent
activities. This is not because the established government is
constitutionally legitimate (although, incidentally, it would be),
but rather because the insurgent authorities have not succeeded
in establishing themselves in its place. CXs long as this situation
persists, the established government is internationally the de jure
government; the insurgents remain, at most>Na de facto govern-
ment over a specified portion of the territory.7^
In principle, therefore, when we speak of ' de jure ' or ' de
facto ' with reference to a State or government, it is only legitimate
to use it in this sense. But, in practice, from the early literature
on recognition to the present time, the use has been indiscriminate.
Thus, in the remarks of President Monroe and Secretary Van
Buren quoted above," the obvious meaning is that a foreign
government, although it may be de facto in the constitutional
sense, may, nevertheless, be regarded as de jure in the international
sense. The use of the two terms in different senses in the same
sentence is most likely to create confusion.' Even those who
profess to adopt a principle of recognition without regard to
constitutional legitimacy have often been unable to avoid using
using the phrase, ought to possess the powers o.f sovereignty, though at the
time it may be deprived of them. A de facto government is one which is
really in possession of them, although the possession may be wrongful or
precarious ' {Neutrality of Great Britain during the American Civil War, 1870,
p. 108, quoted in Luther v. Sagor [1921] 3 K.B. 532, 543). See also Ralston
(Law and Procedure of International Tribunals, 1926, ss. 549-50, 556), who
seems also to regard a de facto government as one without constitutional
basis.
8 Noel-Henry, op. tit., s. 222.
7Baty, op. cit., n. 21, p. 15 above, p. 207.
8 Above, p. 271.
8 This criticism may be applied to the remark of Nielsen in his dissenting
opinion in Oriental Navigation Co. (1928): 'A new regime or government
may gain control of a country and be the de facto, and from the standpoint
of International Law therefore the de jure government . . .'* (23 A.J.I.L.,
1929, p. 434, at p. 440).
De Facto and De Jure Recognition 273
the terms ' de facto ' and ' de jure ' in the constitutional law sense.
Thus, Canning described the successive governments in France
after the downfall of the Bourbons as ' Governments de facto '."
Borchard refers to the Governments of Cromwell and Napoleon I
as 'de facto governments'.11 To call a government exercising
unopposed power in the country even a ' general de facto govern-
ment ' is to signify that its power is not constitutionally legitimate.
In the international law sense such a government is a de jure
government.12 In Republic of Peru v. Peruvian Guano Co. (1887)
the plaintiffs denied the validity of an act done by ' the de facto
Government of the Republic which was not the de jure Govern-
ment ', although it was admitted that the ' de facto government '
had been recognised by the sovereign of the forum. The plain-
tiffs apparently confused the lack of constitutional legitimacy
of the government with the lack of international capacity. They
were told by the court that their argument was untenable." The
fact that that Government was recognised by a foreign State
indicates that, in the eyes of the recognising State, the govern-
ment in question, de facto as it may be in municipal law, was
de jure in international law. The bringing of the notion of
constitutional legitimacy into the discussion of the question of
international recognition is merely to confuse the issue.
§ 2. De Facto Recognition and Recognition as a
De Facto Government (Or State)
(/The phrase ' de facto (or de jure) recognition " is descriptive of
the character of the act of recognition, and the phrase ' recognition
as a de facto (or de jure) government (or State)' is descriptive of
the character of the thing recognised. They belong to entirely
different categories of ideas.1*) If we use the term ' de jure govern-
ment ' in the international law sense, as urged above, it would
10 Smith, vol. I, p. 167.
11 Borchard, Diplomatic Protection of Citizens Abroad, 1928, p. 206.
"'The rebels may constitute, by their temporary assumption of the control
of a part of the territory, a de facto government, with which other countries
may have necessary but most stringently restricted and unofficial relations.
But the government controlling the whole of its territory must necessarily
be a de jure government; its jus flows from the fact of its complete supremacy.
A merely de facto government is therefore, in International Law, always an
imperfectly successful government ' (Baty, op. cit., p. 207).
13 (1887) 36 Ch. D. 489, 497.
11 Williams, loc. cit., p. 66.
J8
274 Qualified Recognition
mean a government exercising unrivalled control over the whole
territory. Such a government can only be ' recognised as a
de jure government ', and never as ' a de facto government \
because a Cde facto government ' is, by definition, a partial
governmenp
(However, it is usual for a government exercising unrivalled
control to be ' recognised de facto') Thus the Soviet Government
in Russia was recognised by Great Britain de facto in 1921, and
de jure in 1924. The character of the Soviet Government was
unchanged, but the character of the recognition was different.
Conversely,(a ' de facto government ' (either a belligerent com-
munity or a military occupant),15 being, by definition, a partially
successful government, is not entitled to be recognised as a State
government, either de facto or de jure^t ' De facto government '
is often used as an equivalent to a government of which recog-
nition is wanting.16 To say that a de facto recognition is
recognition as a de facto government is an obvious contradiction
in terms.
This logic must follow from the acceptance of the distinction,
in the international law sense, between ' de jure ' and ' de facto '
governments. Since that distinction has not been universally
followed, it cannot be expected that the distinction between ' de
jure (or* de facto) recognition ' and ' recognition as a de jure
(or de facto) government' will be observed. As a matter of
fact, these two phrases have frequently been used interchangeably
by numerous authorities. Sir Arnold McNair, for example, lends
his full authority to the equating of the two phrases, saying that :
'It is not the recognition which is de jure or de facto, but the
Government or situation. On that understanding we may use
the convenient expression recognition de jure and recognition de
facto.' " Similar views have been expressed by Noel-Henry,1"
15 See below, p. 291.
16 Noel-Henry, op. cit., n. 320. Hall mentions that the surrender of criminals
to a * de facto government' does not constitute recognition (p. 109, n. 1).
United States courts frequently referred to the Confederacy and the Soviet
Government before 1933 as ' de facto governments '. See Cardozo J. in
Sokoloff v. National Bank of New York (1924) (Cases, p. 160). Referring
to the effect of recognition, Stone C.J. said that such effect ' operates only
to validate to a limited extent acts of a de facto government which by virtue
of the recognition, has become a government de jure ' (U.S. v. Pink (1941),
315 U.S. 203, 252. Italics added.).
17 McNair, Legal Effects of War, 1948, p. 353, n. 1.
18 Noel-Henry, op. cit., s. 50.
De Facto and De Jure Recognition 275
Hervey,19 Lauterpacht,20 and Scelle.21 Sir John Fischer Williams
notes, not without regret, that this view has been accepted in
the current language of high legal and political authorities."
Thus, Kay L.J. remarked in Republic of Peru v. Dreyfus Bros,
and Co. (1888) that "The French Government had recognised
Senor Pierola's Government as the de facto government of Peru '."
In Luther v. Sagor (1929) Bankes L.J. tried to find out the legal
effect of ' the recognition by His Majesty's Government in April,
1921, of the Soviet Government as the de facto Government of
Russia ' upon the past acts of that Government.21 In Princess
Paley Olga v. Weisz (1929) the English Court of Appeal was
informed that the Soviet Government in 1924 'had been recog-
nised by the British Government as the de jure Government of
Russia, and in 1918 — or the end of 1917 — as the de facto Govern-
ment'.*5 Here, what the court was considering is the effect of
the ' de facto recognition ', and not that of the ' recognition as a
de facto government '. Either in the sense of constitutional law
or in the sense of international law, to speak of the recognition
of the Soviet Government as a de facto government in 1921
and as a de jure government in 1924 is incorrect. For in consti-
tutional law, the Soviet Government was just as illegal in 1924
as in 1921; in international law, its authority was nation-wide,
and not partial, in both periods. The character of the authority
it exercised in both periods was the same. The difference in the
situation in 1921 and 1924 was solely one of the attitude of the
British Government towards it, as manifested in its de facto,
and later de jure, recognition. The British Government may have
had reason to believe that the Soviet Government's authority in
Russia had been more precarious in 1921 than 1924, yet the
19 Hervey, op. cit., n. 1, p. 135 above, p. 12.
20 Lauterpacht, p. 330.
21 Scelle, Regies Generates du Droit de la Paix, 46 Hague Recueil, 1933, p. 327,
at p. 389. This also seems to be the view of Professor Brierly. But after
stating that the terms ' de jure' and ' de facto ' should apply to things recog-
nised rather than to the act of recognition, he says that de facto recognition
may be accorded in cases where the recognising State has doubts or political
reasons for not wishing to treat the recognised power with too great cordiality
(Law of Nations, 1949, p. 131). Then, it seems, the recognition de facto is not
determined by the character of the object recognised.
22 Williams, loc. cit., p. 68.
23 (1888) 38 Ch. D. 348. Italics added.
24 [1929] 3 K.B. 532, 541. Italics added.
25 (1929) 45 T.L.R. 365, 366. Italics added.
276 Qualified Recognition
character of the Soviet regime as the general State government,
and not a local de facto government, even in 1921, must certainly
be without question.
In two English cases concerning the Ethiopian War and the
Spanish Civil War, the converse situation obtained." The
position of the ' governments ' recognised was that of ' de facto
governments' (in the international law sense, i.e., a military
occupant in the first case,27 and a belligerent community in the
second).28 The court, however, following the principles of Luther
v. Sagor (1929)29 and White, Child & Beney, Ltd. v. Eagle Star and
British Dominions Insurance Co., Ltd. (1922),30 treated them as
State governments, recognised de facto by the British Govern-
ment.31 In Haile Selassie v. Cable and Wireless, Ltd. (No. 2) (1939)
Sir W. Greene, M.R., again used the phrases ' de facto recognition '
and ' recognition as a de facto government ' interchangeably. He
said: 'Further, it is not disputed that that right of succession
is to be dated back at any rate to the date when the de facto recog-
nition, recognition of the King of Italy as the de facto sovereign of
Abyssinia, took place.' 32
<Jn view of such a formidable usage in equating ' de facto
recognition7 with 'recognition as a de facto government', it is
perhaps impossible to reverse the trend, or to discard the usage,
although it may be more logical to do so. Yet it is necessary to
point out that the phrase ' recognition as a de facto government ',
while usually used as equivalent to ' de facto recognition ', has
sometimes been used to mean that the body recognised is a
partially successful government?) One must be careful to see
26 Bank of Ethiopia v. National Bank of Egypt and Liguori [1937] Ch. 513;
Banco de Bilbao v. Sancha [1938] 2 K.B. 176.
27 The British Government ' recognised the Italian Government as being in fact
(de facto) the government of the area then under Italian control' ([1937] Ch.
513, 519). Italics added.
28 The Foreign Office letter of February 17, 1938, stated that the Franco Govern-
ment was recognised ' as the government which exercises de facto administra-
tive control over a considerable portion of the Basque country ' ([1938] 2 K.B.
176, 181). Italics added.
29 [1921] 3 K.B. 532.
30 (1922) 38 T.L.R. 367.
81 In the Ethiopia case, Clauson (then Mr. Justice) said : ' ... the recognised
de facto government must for all purposes ... be treated as a duly recognised
foreign sovereign state . . . ' ([1937] Ch. 522). In the Spanish case, the same
learned judge (then Lord Justice) said : ' This court is bound to treat the acts
of the government which His Majesty's Government recognises as the de
facto government of the area in question as acts which cannot be impugned
as the acts of an usurping government' ([1938] 2 K.B. 196).
32 [1939] Ch. 182, 197. Italics added.
De Facto and De Jure Recognition 277
that the one, and not the other, meaning is intended. Thus, in
Bank of Ethiopia v. National Bank of Egypt and Liguori (1937)
and Banco de Bilbao v. Sancha (1938), the Foreign Office state-
ment did not amount to a recognition of the authorities in question
as State governments, but rather as local de facto authorities over
specified areas of territory.33 In Haile Selassie v. Cable and
Wireless, Ltd. (No. 2) (1939) the Foreign Office stated that the
Italian Government was recognised ' as the government de facto
of virtually the whole of Ethiopia '.31 (In The Arantzazu Mendi
(1939) it recognised the Nationalist regime ' as a government
which at present exercises de facto administrative control over
the larger portion of Spain \35 It is quite clear that what the Gov-
ernment recognised were mere local de facto authorities.38 The
judgments of the courts in treating them as recognitions de facto
of State governments have obviously been due to the lack of
precision in the terminology. The result of this confusion in
terminology is serious. It blurs the line between the legal status
of a State government and a local de facto authority.')
§ 3. De Jure Recognition and De Facto Recognition
Owing to the confusion in the meaning of the terms ' de jure'
and ' de facto ', there is consequently a lack of agreement regard-
ing the distinctive features which characterise the two situations :
' de jure recognition' and ' de facto recognition'. However,
assuming that ' de jure ' and ' de facto ' when used in connexion
with recognition should be understood in the international sense,
it is not difficult to dismiss at once some of the suggested distinc-
tions. First, it may be stated thatfthe distinction does not lie in
the constitutionality of the regimeDProfessor Lauterpacht explains
with great lucidity that, unless the notion of recognition be
detached from the constitutional issue, either there can be no
"Above, notes 27, 28.
34 [1939] Ch. 183. Italics added. The words 'virtually the whole of Ethiopia'
may be interpreted in the light of a statement, by Butler, Under-Secretary,
in the Commons, March 17, 1938, that ' H.M. Government, since December,
1936, recognised the Italian Government as the Government de facto of the
parts of Abyssinia which they control ' (Pari. Deb., H.C., 5th ser., vol. 333,
col. 617).
35 [1939] A.C. 256, 264. Italics added.
36 See the announcement of the Prime Minister regarding the recognition of the
Spanish Nationalists, above, p. 236.
37 See below, p. 293 et seq.
V-
278 Qualified Recognition
de jure recognition at all, since every government must have
originated in a more or less distant past from revolution, or the
distinction would be reduced to a mere technicality by recog-
nising de jure all subsequent governments except the first revolu-
tionary government.38 It is indeed true that a government de
jure in the international sense normally39 carries with it the quality
of constitutional legitimacy. But that is merely incidental. Once
a dispossessed government is deprived of all reasonable hope of
return, whatever its claims of constitutional legitimacy they would
be of no avajl.
Secondly ,{the distinction does not lie in the circumstance that
recognition ae facto carries with it the recognition of the ' enjoy-
ment of sovereign rights ' but not the ' exercise ' of them, unless
recognised de jure.1" Since this distinction has been suggested
as the distinction between recognition and non-recognition," it
is difficult to see how it can be applied to the differentiation
between de jure and de facto recognition, unless it be assumed
that a de facto recognition is no recognition at alQ
Thirdly(jhe distinction does not lie in the mode in which the
recognition is accordedj The contrary view has been held by a
number of authorities. Thus, Fauchille identifies de jure recogni-
tion with express recognition and de facto recognition with implied
recognition.42 A similar view is also expressed by Hershey when he
speaks of the appointment of consuls as merely implying de
facto recognition, while the granting of exequaturs implies full
recognition.43
It is true that de facto recognition is more likely to be tacit
38 Lauterpacht, p. 265.
39 In exceptional cases, a government de jure in the international sense may not
be de jure in the constitutional sense, as, for example, the case of a successful
coup d'etat by the Head of the State (see Le Normand, op. tit., p. 275). See
the case of the Balmaceda Government in Chile, 1891, which was denounced
by the Congressionalists as unconstitutional but was treated as de jure by the
Powers (Rougier, op. cit., p. 496). Sometimes it is not clear which of the
parties carries on the constitutional continuity, as in the case of Spain during
the Napoleonic War (Moore, Digest, vol. I, p. 131-2).
40 That view has been held in Hall, p. 103, n. 2; Rivier, op. cit., n. 23, p. 15 above,
vol. I, p. 58; Fauchille, op. cit., n. 24, p. 15 above, t. I, pt. I, s. 199; Berdahl,
The Power of Recognition, 14 A.J.I.L., 1920, p. 519.
41 Above, pp. 15-6.
42 Fauchille, op. cit., t. I, pt. I, s. 206. Similarly, Rougier, loc. cit., n. 33, p. 103
above, p. 232; Sir Robert Phillimore in The Charkieh (1873), L.R. 4 A.
and E. 59, 86.
43 Hershey, Notes on the Recognition of De Facto Governments by European
States, 14 A.J.I.L., 1920, p. 499, at p. 516.
De Facto and De Jure Recognition 279
than de jure recognition, which is often used as an occasion for
advertising the relations between the parties. It may be more
fitting to a de jure recognition to be attended by a greater
solemnity, but that does not explain the essential character of
the two forms of recognition. Both de jure and de facto recog-
nition may be either express or implied.41 Thus, the appointment
of diplomatic representatives is an implied mode of recognition;
yet the recognition thus accomplished is usually de jure." On
the other hand, examples may also be found in which de facto
recognition has been accorded by express acts, such as the recog-
nition de facto by the United States of the Finnish Government
on May 7, 1919, the Armenian Government on April 23, 1920,
and the provisional government of Israel on May 14, 1948, by
means of direct communications.46
The fact that de facto recognition is more often tacit should
not be the reason for confusing it with de facto intercourse.) Thus,
in The Annette, The Dora (1919) ," in spite of the co-operation
in war and the exchange of representatives between Great Britain
and the Provisional Government of Northern Russia, it was held
that no recognition either de jure or de facto had been accorded.
On the other hand, in The Gagara (1919) 48 the Estonian
National Council was recognised by the British Government as
' a de facto independent body '. Was it a de facto recognition
as * the Government ' of an Estonian State? The Court answered
affirmatively.49 Similar anomalous terms have been used with
regard to Czechoslovakia and Poland during the First World
War. The Czechoslovak National Council was recognised by
France as 'the Supreme Organisation of the Czecho-Slovak
Movement in Entente Countries', and by the United States as
a 'de facto belligerent government'.50 The Polish Army was
recognised by Great Britain, France and the United States as
'autonomous and co-belligerent under the supreme political
41 Erich, loc. eit., pp. 469-70, 481; Noel-Henry, op. cit., s. 49; Lauterpacht, p. 346.
45 See Resolution of the Institute of International Law, 1936, Articles 4, 9, 12,
14 (30 A.J.I.L., 1936, Supplement, p. 185). [Cf., however, Great Britain
'and Israel, 1949, for an instance' in which it was clearly indicated that such
exchange did not affect the de facto character of the recognition, above,
p. 198.]
" Hackworth, vol. I, pp. 212, 222; State Dept., Bulletin, vol. 18, 1948, p. 673.
" [1919] P. 105.
48 [1919] P. 95.
49 At p. 103.
50 Hackworth, vol. I, pp. 203, 204.
V
280 Qualified Recognition
authority of the Polish National Committee '." It may be doubted
whether these acts of recognition constituted the recognition
de facto of a State Government.52
As the borderline between relations officieuses and recog-
nition (presumably de jure) has always been ill-defined," it may
be expected that just where de facto recognition fades into such
relations officieuses would not admit of a clear definition. The
Institute of International Law thinks that provisional agreements"
and the maintenance of relations with the new government ' for
the purposes of current affairs '" constitute recognition de facto
of a new government. This is objected to by Professor Lauter-
pacht, who regards such acts as merely instances of de facto
intercourse, which the practice of States considers as compatible
with non-recognition, both de jure and de facto." But any such
generalisation may prove dangerous. The Soviet Government
was recognised de facto by a number of States through the con-
clusion of provisional agreements." It may perhaps be concluded
that, although, in principle, recognition both de jure and de facto
is distinguishable from de facto intercourse, any definitive fine of
demarcation must be regarded as still lacking."
Fourthly, (the distinction between de jure and de facto recog-
nition does not lie in the circumstance that the latter is conditional
or provisional or with reservations attachedT^The view has been
held by some authorities that de facto recognition is to hold the
body recognised on probation on condition of good conduct, or
the fulfilment of certain requirements, or the lapse of time." Baty
seems to think that this is the essence of de facto recognition,
and he strongly disapproves of it.60 The recognition by the
51 Hackworth, vol. I, p. 216.
52 See the doubt expressed in Lauterpacht, p. 334, n. 3.
53 See above, pp. 219-20.
"Articles 9, 14 (2), Resolutions of 1936 (30 A.J.LL., 1936, Supplement, pp.
186, 187).
"Article 14 (3) (ibid., p. 187).
36 Lauterpacht, pp. 346-7. See the same view of the Norwegian Foreign Office
regarding consular agreements with the Franco administration in Spain
(Campuzano v. Spanish Government (1938), Norway, Sup. Ct. (1938), Annual
Digest, 1919-42 (Supplementary Volume), Case No. 43, at p. 70).
"Lauterpacht, p. 335.
88 See Briggs, loc. cit., n. 22, p. 216 above, p. 47.
59 Noel-Henry, op. cit., s. 151.
" See above, n. 17, p. 268 above, and loc. cit. at p. 487.
De Facto and De Jure Recognition 281
British Government of the Estonian National Council is thought
to be an illustration of the conditional nature of de facto recog-
nition.61 Even if we assume for a moment that recognition may
be conditional, subjection to conditions cannot be said to be the
distinctive feature of de facto recognition alone. There are
numerous cases in which ' conditions ' have been attached to
de jure recognition as well."
>Chere is, indeed, a practice among States to recognise new
powers only de facto, and not de jure, until certain conditions
have been satisfied^ The significance of this practice depends
upon whether ' de facto recognition' is "a recognition', that
is to say, whether the granting of de facto recognition is con-
ditioned upon the presence of the requirements of statehood or
governmental capacity as laid down in international law. If
de facto recognition is 'a recognition', then the recognition is
definitive and cannot be withdrawn as long as the requirements
continue to be met. The ' conditions ' that may be required
for de jure recognition are merely the price offered for a
greater political solidarity. If de facto recognition is not ' a
recognition ', then it cannot be conditional, as there is nothing to
be withdrawn. Professor Lauterpacht seems to want it both
ways. He says :
' Recognition de facto takes place when, in the opinion of
the recognising State, notwithstanding the presence of the prin-
cipal condition of recognition, namely, that of effectiveness, there
are absent other conditions of recognition which, in the opinion
of the State in question, are required by international law. The
result is — and this is the essential feature of de facto recognition —
that for the time being recognition thus granted must be regarded
as provisional and liable to withdrawal in case the prospect of
those conditions being fulfilled should finally disappear.' "3
It may be questioned whether these ' conditions ' other than
that of effectiveness are in fact requirements of international law.
If they are, the logical conclusion would seem to be that in the
absence of these conditions there could be no recognition
whatever.61 If they are not, then the new power should be
61 The Gagara [1919] P. 95.
62 E.g., notes 9, 10, p. 266 above.
63 Lauterpacht, p. 338.
6i See Erich, loc. cit., p. 481.
V
282 Qualified Recognition
entitled to a full recognition, not one subject to conditions or
revocation.
By saying that de facto recognition is provisional and transi-
tory, nothing more is meant than that it is revocable at a not-too-
distant date. As we have pointed out/recognition, whether
de facto or de jure, as evidence of the existence of the body
recognised, is incapable of being withdrawn, while as a manifes-
tation of friendly relations it is revocable at will in both cases.65
Therefore, it cannot be said that the shortness of duration is
the peculiar characteristic of de facto recognition^) The Institute
of International Law, in stating that de facto recognition may
be accorded by means of the conclusion of provisional agree-
ments,66 may seem to support the contrary view. It is believed,
however, that the Institute was merely pointing out the difference
in the methods by which recognition can be accorded, rather
than the difference in the nature of the two forms of recognition.
Entering into provisional agreements may be an indication of
lack of confidence; but the lack of confidence need not be a sign
that the existence of the power recognised is incomplete or
ephemeral. The expectancy of stability and permanence of a
State or government is necessarily a matter of degree and
speculation. New States or governments are indeed more likely
to be shrouded in uncertainties. But a recognising State need
not go into such speculations.67 A power recognised de jure
may be just as likely to be short-lived.68 What is important for
the recognising State is to be assured that the power recognised
does, in fact, have existence at the time of the recognition. Proof
of stability is often a matter of speculation. Great Britain waited
three years before recognising de jure the Soviet Government,
while the United States recognised de jure the Republic of Panama
one week after the recognition de facto.™ It is usual for de jure
recognition to be accorded directly without the intermediate stage
65 Above, p. 261.
66 Articles 9, 14 (2), Resolutions of 1936 (loc. cit., n. 54 above, pp. 186, 187).
•' McNair (op. cit., pp. 353-4) and Erich (loc. cit., p. 482) think that in unstable
situations de facto recognition may be preferred, but they base this preference
upon pure ' prudence and caution ' and opportunism. In other words, they
consider the difference as entirely political.
68 Georgia was recognised de jure by the Great Powers in 1920 (Erich, loc. cit.,
p. 483). By the end of 1922 she was merged into the Soviet Union (164
Annual Register 1922, p. 188).
69 Moore, Digest, vol. 3, p. 55.
De Facto and De Jure Recognition 283
of de facto recognition.70 If the stability of the new regime is
really in doubt, even a de facto recognition would not be
justifiable.
Finally .((the distinction between de facto and de jure recog-
nition does not lie in the circumstances under which one or the
other should be accorded, nor in the legal effects of the recognitionT)
Professor Lauterpacht suggests that de facto and de jure recog-
nition are distinct legal acts justified under different circumstances
and producing distinct legal consequences." We have already
discussed the untenability of his suggestion that the sole condition
of effectiveness is sufficient to justify recognition de facto, while
other requirements are necessary for recognition de jure. We
have pointed out that, if these ' other requirements ' are legal
requirements, then de facto recognition is not ' a recognition '."
We are inclined to flunk that these ' other requirements ' are not
legal requirements. (The effectiveness of control (implying, of .
course, the absence of precariousness) alone qualifies a new power
to recognition both de facto and de jure." But other factors
may influence the recognising State in deciding upon the nature
and scope of the relations it may wish to enter into with the new
body. An unfavourable decision may perhaps result in a mere
de facto recognition. The difference is therefore purely political,
noUegaLj
(As to legal consequences, as even acts of totally unrecognised
actual governments have been given legal effects in municipal and
international law,74 such legal effects should, a fortiori, be given
to one recognised de facto. [In matters regarding jurisdictional
immunity,75 validity of internal acts,78 and retroactivity 7T English
70 [At the present day this does not seem to be borne out in Anglo-American
practice, see the case of Israel, pp. 101-2, 123 above. Cx., however, the
recognition of Viet Nam, Laos and Cambodia as associate States within the
French Union, The Times, February 8, 1950, United States Information
Service, Daily Wireless Bulletin, No. 1200, February 8, 1950.]
" Lauterpacht, pp. 338-46.
"Above, p. 281.
73 Noel-Henry, op. cit., s. 170; also above, pp. 54 et seq., 117 et seq.
74 See above, Part 3.
75 The Gagara [1919] P. 95.
76 Luther v. Sagor [1921] 3 K.B. 532. Article 15 of Resolution of the
Institute of International Law, 1936, seems to imply that the internal acts
of a government recognised only de facto cannot be recognised. But Article
17 clearly provides that extra-territorial effects may even be accorded to acts
of totally unrecognised governments. No distinction is, however, made
between the de jure and de facto recognition of States (30 A.J.I.L., 1936,
Supp., pp. 186-7). The view of the inferiority of the effect of de facto
u-
284 Qualified Recognition
courts have positively committed themselves to the view that no
distinction need be drawn between de jure and de facto recog-
nition?) In the cases regarding the Italian authority in Ethiopia
and the Nationalist administration in Spain, these principles have
even been extended to a situation in which the authority in ques-
tion had not completely consolidated itself as ' the government '
of a State.78 It is also quite clear that in matters concerning the
acquisition of a new nationality " and the binding force of inter-
national engagements there is no distinction between de jure and
de facto, recognition.80 As to whether in other matters the
distinction is material, the question has not been decided one way
"/ or the other by English courts." English courts have throughout
been guarded in their pronouncements, and have confined them-
selves to the particular point at issue.82 It may therefore be a
recognition is rejected by Noel-Henry (op. cit., s. 151). In Tallinna Laevau-
hisus Ltd. v. Nationalised Tallinna Laevauhisus and Estonia State Shipping
Line (1946), 19 Lloyd's List L.R. 245, it was, however, held that the law of
the Estonian Soviet Socialist Republic could not be recognised because the
government was only recognised de facto. This view is criticised in 19
B.Y.I.L., 1938, p. 238, n. 1; 23 ibid., 1946, p. 386. [In the Court of Appeal
it was pointed out that the reason for the non-recognition of the Estonian
law lay in the fact that this law had not been proved as must any foreign
law, regardless of the de facto character of the recognition (1946) 80 Lloyd's
List L.R. 99.]
77 Luther v. Sagor [1921] 3 K.B. 532, 543, 551. In Oetjen v. Central Leather Co.
(1917) 246 U.S. 302, the principle of retroactivity was mentioned with refer-
ence to de jure recognition. The omission of any reference to de facto recog-
nition is probably unintentional (Lauterpacht, p. 342, n. 3). In Haile Selassie
v. Cable and Wireless Ltd. (No. 2) [1939] 1 Ch. 182, 197 it was held by Sir
Wilfrid Greene, M.R., that, since the recognition of the King of Italy by Great
Britain as the de jure Emperor of Ethiopia, his right of succession to
Ethiopian property abroad was to be dated back ' at any rate to the date
when the de facto recognition, recognition of the King of Italy as the de facto
sovereign of Abyssinia, took place '. This seems to imply that the principle
of retroactivity with regard to the right of succession does not go beyond
the date of the de facto recognition. On the other hand, in Princess Paley
Olga v. Weisz, the court regarded the de facto recognition of the Soviet
Government by Britain in 1921 abating back to ' 1918 — or the end of 1917 '
((1929) 45 T.L.R. 365, 366).
'" See below, p. 293 et seq.
79 Noel-Henry, op. cit., s. 51.
80 See Hervey, op. cit., p. 14. This is obvious, since so many de facto recogni-
tions have been accorded by means of international agreements.
"Brierly, op. cit., p. 134.
82 ' For some purposes no doubt a distinction can be drawn between the effect
of the recognition by a sovereign State of the one form of government or of
the other, but for the present purpose in my opinion no distinction can be
drawn ' (Bankes L.J. in Luther v. Sagor [1921] 3 K.B. 532, 543). Also
Warrington L.J., ibid., 551; Lord Atkin in The Arantzazu Mendi [1939]
A.C. 256, 265. Goddard L.J. in his concurring opinion in the Court of
Appeal in the latter case, however, remarked : ' ... we are bound by authority
to hold that for all purposes the consequences are the same as they would
be if the government were a de jure government' ([1939] P. 37, 55. Italics
added.).
De Facto and De Jure Recognition 285
matter of opinion whether the lack of legal distinction is true for
all purposes."
(Professor Lauterpacht, who thinks that for some purposes
there are legal distinctions between the two forms of recognition,
draws attention especially to two ' legal ' consequences of de jure
recognition, which are said to be absent in de facto recognition,
namely, the full diplomatic intercourse between the parties and
the right ' to represent the State in matters of State succession
and otherwise '.3 In another place he points out the importance
which States attach to the different forms of recognition, as
exemplified in the Danish-Russian Preliminary Agreement of
April 23, 1923. It was provided in that agreement that Denmark
should not be entitled to claim the special privileges granted by
Russia to States which had recognised or may have recognised
her de jure,65 [unless Denmark accorded to Russia such com-
pensation as was accorded by the State in question] .
Regarding the first point, it may be said that the appointment
and the reception of diplomatic representatives is one of the
commonest modes of recognition. It cannot be said to be the
legal consequence of recognition. States recognising each other
may yet maintain no diplomatic relations. In Fenton Textile
Association, Ltd. v. Krassin (1922) it is true that the Foreign
Office stated that ' It is not the practice of the Sovereign to receive
the representative of States which have not been recognised de
jure '." All the three Lords Justices of the Court of Appeal
(Bankes, Scrutton, Atkin) made no reference to this point, how-
ever, but gave judgment mainly upon the ground that the
position of Krassin as ' the official agent of the Soviet
Government' under the Trade Agreement did not entitle him,
as such, to full diplomatic immunity. The British Govern-
ment had clearly stated ini the House of Commons that
Krassin was not received as a diplomatic representative." His
immunity was defined in Articles IV and V of the Trade Agree-
83 Lauterpacht argues that for some purposes the legal consequences of de jure
and de facto recognition may not be the same (p. 288, n. 2). Contra, Brierly,
op. cit., p. 134; Briggs, n. 1 above, pp. 690-1.
84 Lauterpacht, pp. 345-6. A third consequence, the non-liability to withdrawal,
has already been dealt with (pp. 261-2 above).
85 Lauterpacht, p. 335. The text of the Agreement is printed in XVIII L.N.T.S. 15.
86 (1922) 37 T.L.R. 259, 260. [But see the relations between Great Britain and
Israel, 1949, above, p. 198, below, p. 286.]
87 March 21, 1921, Pari. Deb., H.C., 5th ser., vol. 139, col. 2198.
286 Qualified Recognition
ment.88 It was the position and function of Krassin, rather than
the lack of de jure recognition of his government, which deter-
mined, in this case, the scope of his immunity. It was observed
by Atkin L.J. that, even if Krassin were entitled to ordinary
diplomatic privileges, it would still be open to the respective
governments to enlarge or restrict them by agreement.89 The
case clearly shows that the Court did not think that the absence
of de jure recognition was relevant in determining the question
of diplomatic immunity.90
It may also be pointed out that the Foreign Office statement
regarding the British practice of not receiving diplomatic repre-
sentatives of foreign governments not recognised de jure has not
been uniformly observed. The representative of the French
Provisional Government was accorded diplomatic privileges in
Britain.91 [Similarly, in 1949 the status of the Israeli representa-
tive in Great Britain was raised to that of a ' duly accredited
Minister ' and his office to that of a ' Legation ', and his
letters of credence were presented to the King, but it was not
considered that this accorded de jure recognition to Israel.] 92
The practice was not adopted in the United States. In recognising
de facto the Carranza Government in Mexico in 1915, the United
States intimated her willingness to resume formal diplomatic
relations, which took place in March, 1917,93 some months before
the de jure recognition.94 In an instruction to the American
charge d'affaires in Mexico, May 25, 1920, the State Department
cautioned that the charge should not permit ' any imputation
that the present regime (of de la Huerta) has been even de facto
recognised by the Government of the United States. Recognition
cannot be accomplished by inference merely, but by the full and
formal entrance into international relations through the public
action of the respective executives of the two countries \95 On
May 3, 1919, the Council of Ministers of Foreign Affairs com-
posed of representatives of the Great Powers agreed that diplo-
88 Agreement of March 16, 1921 (114 B.F.S.P., 1921, p. 373, at p. 376).
89 (1922) 38 T.L.R. 262.
90 For the contrary view, see Lauterpacht, p. 344; Noel-Henry, op. cit., s. 151.
91 See Mr. Law's statement in the House of Commons, October 25, 1944 (Pari.
Deb., H.C., 5th ser., vol. 404, col. 143).
02 [The Times, May 14, 1949, and above, p. 198.]
93 Hackworth, vol. I, p. 260.
94 On August 31, 1917 (Oetjen v. Central Leather Co. (1917), 246 U.S. 297, 301).
95 Hackworth, vol. I, p. 261. Italics added.
De Facto and De Jure Recognition 287
matic representatives would be appointed to Finland after
the recognition de facto of the Finnish Government. On
May 7, 1919, the United States recognised de facto the Finnish
Government. On August 21, 1919, the Finnish Minister was re-
ceived by the President of the United States. Upon the request
of the Finnish Minister to acknowledge the previous recognition
as being not only de facto, but also de jure, the United States, in
reply, stated that this reply was held ' to constitute full recognition
of Finland as from May 7, 1919 '." In the Provisional Agree-
ment of July, 1920, in which Germany recognised de facto the
independence of Latvia, it was provided in Article 1 that diplo-
matic representatives of the two countries should be dispatched
immediately.'7 In view of the examples cited above, it is difficult
to say that diplomatic relations are possible only between govern-
ments recognising each other de jure.
<^As to the second point, the argument relied chiefly upon the
case of Haile Selassie v. Cable and Wireless, Ltd. (No. 2) (1939).'8
In this case, both the de facto and the de jure governments were
in existence and recognised by the British Government. In the
international law sense, only the de jure government was the
government of Ethiopia, and the Italian Government should be
regarded as nothing but a military occupant. As long as the
Emperor Haile Selassie remained the de jure government, his right
to the property could not be divested and the question of succes-
sion did not arise. That question only arose when, by the de jure
recognition of the King of Italy as Emperor of Ethiopia, the
former government of Haile Selassie became extinct in the eyes
of Great Britain. It was not the character of the recognition,
but the fact that there was any occasion for succession at all which
determined the right of succession. That the determination of
the question of succession upon the distinction between de jure
and de facto recognition is unhelpful may be illustrated by the
proposition of the Soviet delegate to the Genoa Conference of
1922 that the Soviet Government could not be held liable for
debts of its predecessors, until it had been recognised de jure."
96 Hackworth, vol. I, pp. 212-3.
"See above, p. 267, n. 15.
98 [1939] Ch. 182. See Lauterpacht, p. 343.
99 Papers relating to International Economic Conference, Genoa, April-May,
1922, Cmd. 1667 (1922), p. 43. See also Wilson, Diplomatic Relations and
the U.S.S.R., 28 A.J.I.L., 1934, p. 98, at p. 99.
u
288 Qualified Recognition
Such a proposition undermines the more fundamental principle
that the State remains unchanged in spite of the change of its
government. It is not believed that it was accepted by other
powers. If the succession to liabilities is the same in de facto as
in de jure recognition, then it would be difficult to argue that a
difference exists in regard to the succession to rights.
As regards the question of the Danish-Soviet Agreement, it
is not easy to see how a case can be made to show that the dis-
crepancy in commercial treatment is attributable to the form of
recognition. A State is certainly free to show more favours to
countries in more friendly relations with it, [although, as we
have seen, in this case, Denmark could obtain such additional
favours by according to Russia 'compensation similar to that
accorded by the country in question '] . The de jure recognition
by Denmark on June 18, 1924, did not, after all, succeed in
securing from the Soviet Government the treatment from which
she thought herself to have been debarred for the reason that
her recognition was insufficient. The designation by the Soviet
Government of February 15, 1924, as the date before which
recognition de jure would entitle the recognising State to favoured
treatment was purely arbitrary.1 It cannot, therefore, be con-
sidered as having thrown any light on the legal consequences of
dejure as contrasted with de facto recognition.2
^Having dismissed as irrelevant the so-called 'legal' distinc-
tions between de jure and de facto recognition, we are forced
to the unavoidable conclusion that the distinction is primarily
politicals Since recognition indicates the state of political
relations oetween the parties, and since political relations admit
of degrees and variations, recognition, as a reflection of such
political relations, must consequently be divisible into grades.
Normally, recognition should be full and complete, i.e., de jure;
de facto recognition must be considered as an exception, and
as a modification of the normal relations existing between States.*
1 See Taracouzio, The Soviet Union and International Law, 1935, pp. 260-1.
2 See Lauterpacht, p. 335, n. 3.
5 Accord, Rougier, loc. cit., p. 232; Fauchille, op. cit., 1. 1, pt. I, s. 199; Briggs,
loc. cit., pp. 690-1; McNair, op. cit., p. 353.
4 Erich, loc. cit., p. 481. Similarly, Noel-Henry, op. cit., s. 151. Williams
seems, however, to be of the opinion that de facto recognition is the normal
form of recognition (loc. cit., n. 90, p. 52 above, p. 781). But this is the result
of his identifying de jure recognition with the recognition of the constitutional
legality of the new regime. Baty (foe. cit., n. 49, p. 66 above, p. 487) categori-
De Facto and De Jure Recognition 289
De jure recognition marks a measure of subjective approval of
the coming into being of the new entity; on the other hand, de
facto recognition betrays no sign of enthusiasm, but is the mini-
mum recognition consistent with the fact of existence.5 It is more
than de facto intercourse, because the latter may take place with
a body which is not sovereign, such as an insurgent or belligerent
community or a military occupant. It is true that the legal effects
of existence require no recognition; but recognition, even de
facto, would be useful evidence of such an existence. De jure
recognition signifies that not only is such an existence acknow-
ledged, but also that it is indisputable and that the establishment
of political relations with it is desired.
It may be seen, therefore, that the political distinction between
the two forms of recognition is both real and important.^. In
de facto recognition there is naturally lacking the same intimacy
of relations as exists between States recognising each other de
jure. Although de facto recognition may be sufficient evidence
of the actual existence of a new State or government, it may not
be a sufficient indication of the intention of the recognising State
to treat it in the fullness of international relations.* It is a
political expediefipwhich assigns a new power to a ' half-baked '
status with undefined relations with other States, and subjects
it to indignities and inconveniences which it may justly resent.
The practice is especially deplorable as it has often been used
as a means of political bargaining.7
' If de facto recognition indicates a measure of disapproval
of a new regime consistent with the acknowledgment of its actual
existence, is it compatible with the obligation of non-recognition?
To answer this question two kinds of obligations of non-recogni-
cally denies that there should be such a thing as a ' de facto recognition*.
This is the result of his identifying de facto recognition with conditional
recognition and his denial that recognition as the mental appreciation of
facts can be conditional. See above, p. 268, n. 17.
5 Such as the United States' recognition of the Anschluss. See Lemkin, Axis
Rule In Occupied Europe, 1944, pp. 114-5; Garner, Questions of State Succes-
sion Raised by the German Annexation of Austria, 32 A.J.I.L., 1938, p. 421.
6 In the British Foreign Office instruction, 1822, it was pointed out that the
distinction between de jure and de facto recognition is one which is concerned
' rather as to the Mode of our Relations, than as to whether they shall or
shall not subsist, to the extent, in the matter of Rights, as regulated by the
Law of Nations ' (Smith, vol. I, p. 125; p. 80 above). Recognition de facto
might, for instance, have been an insufficient qualification for the admission
to the League of Nations (Laeserson, loc. cit., n. 28, p. 60 above, p. 243).
7Baty, op. cit., n. 21, p. 15 above, pp. 210-2.
19
290 Qualified Recognition
tion must be distinguished : a general international law obligation
not to recognise a regime before it has acquired the necessary
requisites of statehood or governmental capacity; and an obliga-
tion under international agreements not to show approval or
friendliness to a new regime by way of recognitidg As de facto
recognition is no indication of approval — rather, it is an indica-
tion of disapproval — it is not incompatible with the obligation
of non-recognition of the second kind.8 On the other hand, as
recognition, even de facto, is evidence of the existence of a State
or government, to recognise de facto prematurely a regime which
has not assembled the necessary requisites of statehood or
governmental capacity would be contrary to international law.9
In adopting a report with regard to the Sino- Japanese dispute on
February 24, 1933, the Members of the League of Nations
declared that they would not recognise the regime in Manchuria
'either de jure or de facto'.10 This was necessary because the
regime in question never amounted to anything more than a
military occupation by Japan. Professor Erich suggests that a
State may recognise de facto a new power whose qualifications
as a State may be doubtful, but to which the recognising State
wishes to extend its moral and political support.11 Though such
a recognition has often been given, there is no doubt that it
constitutes an intervention in the internal affairs of other States
and is unjustifiable in international law.
§ 4. De Jure Government and De Facto Government
Unlike the distinction between de jure and de facto recognition,
which is mainly political, the distinction between de jure and
de facto governments is essentially legahy By 'de jure govern-
ment' we mean a government de jure in the international law
sense, that is, a government exercising unrivalled control over
the whole of the territory of a State, though, subsequent to the
8 Lauterpacht, p. 348. [In so far as at the present time even de facto recogni-
tion is regarded by the recognised State or Government as something to be
sought after from the point of view of prestige, it may well be contended that
even this is incompatible with the second kind of obligation of non-recognition.]
9 Contra, Phillimore (op. cit., n. 21, p. 15 above, vol. 2, p. 23) thinks that de facto
' recognition is no offence to the parent State because ' it decides nothing con-
cerning the asserted rights of the latter '.
10 Hackworth, vol. I, p. 336.
11 Erich, loc. cit., p. 482.
De Facto and De Jure Recognition 291
establishment of such control, its authority may at times have
been challenged.12 Such a challenge may come either from a
belligerent community in acivil war or a foreign military occupant
in an international war.13 \As long as the war lasts the government
which has hitherto been governing continues to be regarded inter-
nationally as the de jure government of the State, to whatever
extent it may have lost actual control. The de facto government,
although wielding actual power in the territory under its control,
may not, according to the traditional view, be regarded as the
sovereign of the territory.11 This is true even if the de jure
government has been completely ousted,15 or, indeed, has
disappeared.^)
12 See above, p. 271. It is true, as Austin argues, that a de jure government without
de facto control is not a government (Austin, Lectures on Jurisprudence, 1869,
vol. I, p. 336), but a government once having secured de facto control continues
to be the government until definitely deprived of that control.
13 Under exceptional circumstances foreign occupation may take place in the
absence of war, e.g., the French occupation of the Ruhr in 1923, the United
States occupation of Cuba in 1906, and the Dominican Republic in 1917
(Hackworth, vol. I, s. 29); the Allied occupation of the Rhineland (Fraenkel,
Military Occupation and the Rule of Law, 1944, Peace Period, 1920-3, Part 2).
For other instances of pacific occupation, see Wheeler, Governments De Facto,
5 A.J.I.L., 1911, p. 66, at pp. 80-3. For judicial authority, see Keene v.
McDonough (1834) 8 Pet. 308. As to the powers of pacific occupants, see
Cavare, Quelques Notions Generals sur V Occupation Pacifique, 31 R.G.D.I.P.,
1924, p. 339.
14 See Oppenheim, vol. 2, s. 169; Baty, op. cit., pp. 229-30, 469 et seq.; same,
loc. cit., n. 13, p. 100 above, p. 446; Garner, International Law and the World
War, 1920, vol. 2, p. 77; Resolutions of the London Conference of Inter-
national Law of 1943, 38 A.J.I.L., 1944, pp. 291-2; Finch, Foreword to Lemkin,
op. cit., p. vii; Briggs, loc. cit., p. 698. As to practice of States, see the instruc-
tion of the United States Department to the American Ambassador in France,
which, referring to the French occupation of the Ruhr, said : ' Sovereignty
over foreign territory is not transferred by such occupation . . . ' (Hackworth,
vol. I, p. 146). The United States declared the continued maintenance of the
local laws when she was in occupation of the Philippines {ibid., pp. 144-5, 156).
A Belgian court held that the Belgian law of treason was applicable to a
Belgian subject for acts committed in the territory under enemy occupation
(Kauhlen Case (1920), Annual Digest, 1919-22, Case No. 323). The Legal
Adviser of the State Department, however, stated on May 7, 1936, that a
military occupant 'to all intents and purposes, is the sovereign during the
period of occupation ' (Hackworth, vol. I, p. 156). See similar view of an
Italian court in Del Vecchio v. Connio (1920), Annual Digest, 1919-1922, Case
No. 320.
15 Above, pp. 63-4.
18 Hall (p. 582) is of opinion that in the event of the conquest of one State by
a State which is at the same time a.t war with another, the conquest cannot
be considered complete if by any reasonable chance the other war might
extend to the conquered territory. Baty thinks this will not apply to cases
where the war is prolonged for many years (Baty, op. cit., p. 482). Hall's
view seems to have been acted upon during the late war (Oppenheimer,
Governments and Authorities in Exile, 36 A.J.I.L., 1942, p. 568; Brown,
Sovereignty in Exile, 35 A.J.I.L., 1941, p. 666).
During World War II, Czechoslovakia and Albania (above, p. 66: also
Lemkin, op. cit., pp. 106-7) were for a time without a government. There
IS
292 Qualified Recognition
The principles regarding foreign military occupation have
been clearly laid down in Hague Convention No. IV of 1907
(Articles 42-56). Within the limits prescribed by international
law, the military occupant exercises the powers of administration,
and acts in excess of such limits are internationally invalid.17
The traditional view regarding the powers of a belligerent com-
munity in civil war is similarly to restrict its legal acts to those
immediately connected with the prosecution of the war.18 But a
belligerent community, having no other existence apart from that
of a fighting body, must needs have the power to administer the
territory under its control, if solely for the purpose of carrying
on the war. This necessity logically follows from the acceptance
of the proposition that a revolutionary body must be allowed
to fight its war in a legal manner. For this reasori^considerable
was strictly no legal continuity between the Government of Czechoslovakia
and the Czechoslovak National Council under Dr. Benes. There were doubts
whether the exiled Belgian Government could continue to be the same
Government without the King. See below, p. 297, n. 39.
17 Hall, pp. 579-80. Annexation durante bello is illegal and does not confer
title (Oppenheim, vol. I, s. 239; Langer, op. cit., n. 28, p. 60 above, pp. 17, 106,
117; see also Bentivoglio, La ' Debellatio' nel Diritto Internazionale, 1948,
pp. 39-45). The Allied Powers denied the right of Germany and Austria to
dispose, in 1918, of the Polish territory under their occupation (Hackworth,
vol. L, p. 146). The Commission on the Responsibility of the Authors of the
War and on the Enforcement of Penalties included in its list of ' war crimes '
the ' Usurpation of sovereignty during military occupation ' (14 A.J.I.L., 1920,
p. 114). In 1921, the United States refused to recognise the right of Greece
to levy extra taxes in the occupied Turkish territory (Hackworth, vol. I, p. 159).
Acts of the German occupation authorities during World War I in excess of
lawful limits have been criticised by Garner (International Law and the World
War, 1920, ss. 362, 365, 371, 372, 376). By a declaration of January 5, 1943,
the Allied Powers declared" invalid all transfers of property which the enemy
had effected in the occupied territories through illegal methods (Langer, op.
cit., p. 109). For the application of this principle in national courts, see Annual
Digest, 1919-22, Auditeur Militairew. VanDieren (1919); De Nimalv.DeNimal
(1919); Naoum v. Govt, of Colony of French West Africa (1919); Commune
of Bdcsborod Case (T922); Czechoslovak Occupation (Hungary) Case (1922);
Boliotti v. Masse (1920); Del Vecchio v. Connio (1920); Poland v. Ralski
(1922); Bochart v. Committee of Supplies of Corneux (1920); Mathot v.
Longue (1921); Postula v. City of Liege (1919); Cases No. 310-2, 316-8, 320,
322, 327, 329, p. 460, n. (respectively); Poland v. Siehen (1926), ibid, 1925-1926,
Case No. 10. See also, below, n. 30. For a review of cases regarding
the military occupation of Poland in World War I, see Rankin, Legal Problems
of Poland After 1918, 26 Grotius Transactions, 1940, p. 1, at pp. 21-3. For
a collection of German legislation in occupied Belgium during World
War I, see Huberich and Nicol-Speyer (ed.), German Legislation for the
Occupied Territories of Belgium, 1915-1919. For a collection of laws of Axis
Occupants in Europe during World War II, see Lemkln, op. cit., passim, esp.
pp. 12-4. As to the illegal acts of the enemy in the matters of the admini-
stration of justice, see Freeman, War Crimes by Enemy Nationals Administer-
ing Justice in Occupied Territories, 41 A.J.I.L.. 1947, p. 579. See generally,
on this subject, McNair, op. cit., pp. 319-22; Borchard, Diplomatic Protection
of Citizens Abroad, 1928, pp. 207-9.
18 Below, p. 306. Borchard equates the powers of a belligerent community
with a military occupant (op. cit., p. 207).
De Facto and De Jure Recognition 293
concessions have been made towards treating a belligerent com-
munity as a de facto governing body in its territory.^
A marked development in this direction is discernible in the
events of the past dozen years, (jielligerent occupants both in
international and civil wars have been permitted to exercise greater
powers than they did formerly in matters arising within the
territory under their control. At least in England, courts have
begun to recognise an intermediate situation between a military
occupant and the government of a State, where a military occu-
pant had been 'recognised as a de facto government' by the
British Government. Thus, it has been held that a bank incor-
porated by the law of the de jure government should be governed
by the laws of the de facto government then in occupation of its
corporate home;20 that the laws and acts of such a de facto
government could not be impugned and are to be treated as
valid to the exclusion of the laws and acts of the de jure govern-
ment claiming jurisdiction over the same area,21 and that such
a de facto government is entitled to sovereign immunity in
English courts.22 English judges have been outspoken in identify-
ing such a de facto government with the government of a sovereign
State.2^)
Very similar results have been reached in a Dutch case, The
Sendeja (1937).24 In two recent American cases 25 the principle
19 Below, part 6, ch. 20.
20 Bank of Ethiopia v. National Bank of Egypt and Liguori [1937] Ch. 513;
Banco de Bilbao v. Sancha: same v. Rey [1938] 2 K.B. 176; see below,
pp. 318-20.
21 Banco de Bilbao v. Sancha: same v. Rey [1938] 2 K.B. 196; below, p. 319.
22 The Arantzazu Mendi [1939] A.C. 256; below, p. 320.
23 See the judicial opinions expressed in The Arantzazu Mendi, p. 284 above,
n. 82, p. 320 et seq., below.
24 Below, p. 320. The point was precluded from being raised in The Cristina [1938]
A.C. 485, because it was overshadowed by the issue of sovereign immunity
(B.Y. XIX (1938), 244). The same is true of The Arantzazu Mendi. But
Lord Atkin found occasion to state, in an obiter dictum, that the authority
in control of the place of ship's register is the sovereign in that territory
and has the right to make legislative decrees affecting the ship ([1939] A.C. 265).
See contrary judgment of the Court of Appeal of Bordeaux in Lafuente v.
Llaguno Y. Duranona, 1938, recognising the validity of the decree of the
Spanish Republican Government requisitioning ships registered at Bilbao,
which was occupied by the enemy (Annual Digest, 1938-1940, Case No. 55).
See Baty, ' De Facto ' States: Sovereign Immunities, AS A.J.I.L., 1951, p. 166.
25 Amstelbank, N.V. v. Guaranty Trust Co. of N.Y. (1941), 31 N.Y.S. 2d 194,
Annual Digest, 1941-1942, Case No. 171; Koninklijke Lederfabriek 'Oisterwijk
N.V. v. Chase National Bank of the City of N.Y. (1941), 30 N.Y.S. 2d 518,
32 N.Y.S. 2d 131, ibid., Case No. 172. By the time the second case came before
the Supreme Court of New York, Appeal Division, the United States had
entered the war, but the judgment was nevertheless rendered on practically
the same ground as in the first case
l/
294 Qualified Recognition
of the English courts seems to have been applied in a converse
sense. It was held by a New York court that German decrees
promulgated in the Netherlands should not be given force and
effect because the United States 'has refused to recognise' the
German military occupation of Holland. 'Any decrees by this
unrecognised occupying force would not have "the force and
effect of mandates of a lawful sovereign ".' 2* Does this mean
that if the United States had ' recognised ' the occupation the
German decree would have been regarded as 'mandates of a
lawful sovereign '? It is submitted that the validity of the German
decree should depend upon whether it was within the proper
limits of the authority of a military occupant. The court, however,
accepted the test of recognition.
The new tendency seems to allow greater scope to military
occupants than that provided by traditional international law.
The Allied occupation of the Axis countries at the end of the
late war provides examples for an even further departure from
the traditional doctrine." It may be debatable whether these acts
of occupying Powers in excess of the traditional rules are ultra
vires, or whether the rules themselves have been undergoing
transformation.
It has been argued that, in view of the social and economic
changes since the Hague Conferences, the Hague Convention, in
treating the civilian population as bystanders in war, has become
archaic." At least, it has been suggested, a broadened inter-
pretation should be given to the established rules, in order to give
effect to the change of circumstances. For example, the military
occupant might be allowed, as such, to control the operation
of the important banks in its territory, without the necessity of
being regarded as the sovereign of the territory." But how far
the existence of the new state of affairs justifies the modification
of the Hague principles or the liberalisation of their interpretation
cannot be said to have been well settled.^ It is a matter of grave
doubt whether, in view of the doctrines adopted in the Ethiopian
26 Amstelbank Case, ibid., p. 587.
27 See above, p. 70 et seq.
28 See note in 21 B.Y.I.L., 1944, p. 151; see also Smith, The Crisis in the Law of
Nations, 1947, chapter 5. Rennell, op. cit., n. 22, p. 264 above, pp. 344, 419.
29 19 B.Y.I.L., 1938, p. 239; and see Rennell, op. cit., p. 344.
De Facto and De Jure Recognition 295
and Spanish cases, the English or any other Allied courts would
be prepared to accord the same measure of legality to acts of
the enemy occupants during the late war,30 as they did to acts
of the Italian and Spanish Nationalist Governments in the
earlier cases.")
(It is therefore a question whether it is sound international
legislative policy to adopt the English doctrine or how far it can V
be adopted. De facto control is, no doubt, essential for determin-
ing the international validity of governmental acts; but, until the
war is over, it cannot be said that the de facto authority is firmly
established."^ In Bank of Ethiopia v. National Bank of Egypt
and Liguori (1937), Clauson J. was unimpressed by the con-
tention that the Italian Government was a mere military occupant,
and dismissed it on the ground that there was no other effective
government in the same area.32 Every military occupant must,
by definition, be the sole authority within a particular area.
Only by holding it against all reasonable recapture can it become
the government of territory. (The blurring of the distinction by L
30 See McNair, op. cit., p. 341; Freeman, loc. cit., p. 579; Lemkin, passim, esp.
pp. 12-4, 26-31.
The attitude of the courts of the occupied States seemed to vary. Some
upheld the traditional view, as in Huby Freres of Echternach v. Racke (1941),
where a Dutch court held that the ' annexation ' of Luxembourg by Germany
could not change the treaty rights of Luxembourg nationals in Holland {Annual
Digest, 1919-1942 (Special Supplement), Case No. 123). The Greek Council
of State held that military occupation imported no derogation from the
sovereignty of the occupied State, though it considered that a ' government '
set up by the enemy occupant had power to issue laws in contravention to the
established legal order (Marika Eliadi Maternity Home Case (1942), ibid.,
Case No. 152; In re G.D. (1942), ibid., Case No. 153). The French courts,
however, acted upon the theory that there was a co-existence of double
sovereignty in the occupied territory (Re Krebs (1942), ibid., Case No. 156, at
p. 282). The Tribunal Civil de la Seine upheld an anti-Jewish decree issued
by the German military authorities (Re C. 1941, ibid., Case No. 157). In two
other cases, the acts of German authorities were upheld as in accordance with
the Hague Convention (Re L. and D. (1941), ibid., Case No. 158; Privat v.
Bertaux (1941), ibid., Case No. 159). It must be noted that the courts men-
tioned above were then functioning in the territories under enemy occupation.
In Norway, the German authorities declared the King of Norway deposed,
set up a puppet government, altered political laws and interfered with the
functioning of the courts (Public Prosecutor v. X (1940), ibid.. Case No. 160,
at pp. 286-7). Most of the governments of the liberated countries have enacted
legislation nullifying acts of the enemy occupant in excess of the Hague Con-
vention : Poland (Lachs, Polish Legislation in Exile, 24 J.C.L., 19.42, p. 57 at p.
58); Norway (Anon., ibid., 125, 129); Belgium (de Visscher, Enemy Legislation
and Judgments in Liberated Countries : Belgium, 29 ibid., 1947, p. 46, at pp. 49-
52); Netherlands (Jansma, Enemy Legislation and Judgments in Liberated
Countries: Netherlands, ibid., p. 53, at p. 54).
"Oppenheim, vol. I, s. 239; 19 B.Y.I.L., 1938, p. 237, n. 1.
32 [1937] 1 Ch. 513, 521-2.
V
296 Qualified Recognition
the interposition of an intermediate status is in theory unsound^V1
and would, for practical purposes, have a deplorable effect on
the question of the Axis occupation of Allied territories."
'(Even under the new doctrine, despite additional powers having
been accorded to belligerent occupants, it is nevertheless undeni-
able that the de jure government, so long as its efforts at restoration
have not been abandoned, continues to enjoy the exclusive right
to represent the State, and its acts, wherever they can be made
effective, must be treated as the acts of the Sovereign of the Statg^15
Numerous examples can be found during the two World Wars."
Between the Wars there were the instances of the Chinese sove-
reignty over Manchuria, the sovereignty of the Emperor Haile
Selassie and the Republican Government over Ethiopia and Spain,
respectively. The de jure sovereignty of the former government
remained legally intact, although the actual administration tem-
porarily fell into the hands of the enemy.
It would be beyond the scope of this work to attempt a detailed
study of the position of the various de jure governments whose
territories had been partially or wholly occupied by de facto
authorities." The point must, however, be stressed that inter-
national law does recognise that, until reduced to impotence and
without reasonable hope of return, the de jure government carries
on the sovereignty over the whole State, including the territory
under enemy occupation. \It is the unstable character of the
" Baty argues that the so-called de facto recognition of insurgent communities
is in fact nothing but an exaggerated form of the recognition of belligerency
(Baty, loc. cit., n. 49, p. 66 above, p. 469). Phillimore's suggestion of a ' virtual
recognition ' seems to support the idea of an intermediate recognition (op. cit.,
n. 21, p. 15 above, vol. 2, p. 20 et seq.). Lorimer, though generally sympathetic
with this view, thinks that it is little distinguishable from the recognition of
belligerency (op. cit., n. 19, p. 15 above, vol I, p. 153).
" McNair, op. cit., pp. 343, 354.
35 Haile Selassie v. Cable and Wireless Ltd. (No. 2) [1939] Ch. 182; Campuzano
v. Spanish Government, Norway, Dis. Ct. of Aker (1938), Annual Digest,
1919-1942 (Special Supplement), Case No. 43; Banco de Espana v. Federal
Reserve Bank of N.Y.; same v. U.S. Lines Co.; same v. Solomon, 1940, U.S.
Cir. Gt. of App., 2nd Cir., Annual Digest, 1938-1940, Case No. 6.
"See Oppenheimer, Governments and Authorities in Exile, 36 A.J.I.L., 1942,
p. 568. See also above, p. 63.
"See following literature on the subject: Lachs, loc. cit., p. 57; Schwelb,
Czechoslovakia: Legislation in Exile, 24 J.C.L., 1942, p. 120; Anon., ibid.,
p. 125; McNair, Municipal Effects of Belligerent Occupation, 57 L.Q.R., 1941,
p. 67; Drucker, The Legislation of the Allied Powers in the United States,
Czechoslovak Yearbook of International Law, 1942, p. 45; Schwelb, The Juris-
diction over the Members of the Allied Forces in Great Britain, ibid., p. 147;
Taborsky, The Constitutionality of Official Acts of Allied Governments and
International Law, ibid., p. 190.
De Facto and De Jure Recognition 297
occupation, and not the recognition by third States, which confers
this right upon the de jure government,38 although courts of such
third States may have to rely upon the findings of their govern-
ments whether the condition of continued effort at restoration
still exists and whether there is identity between the exiled
government and the former established government^
Decisions by English and American courts during the Second
World War have fully demonstrated the principle that the de
jure but dispossessed government is in all matters the legal sove-
reign of the State, although in these cases its position had been
in no small measure enhanced by the fact of the co-belligerency of
the State of the forum. Thus, In re Amand (No. 1)
(1941) i0 it was held by the King's Bench Division of the English
High Court that the conscription laws of the exiled Netherlands
38 See, however. In re Savini (1927) (Annual Digest, 1927-1928, Case No. 106),
in which it was held by the Court of Appeal of Rome that the exiled Monte-
negrin Government could not exercise extraterritorial rights of sovereignty in
Italy without ' full and formal recognition ' by the Italian Government.
It maybe submitted that the extraterritorial exercise of sovereignty requires,
not the recognition of the government by the State of the forum, but the
special consent of the local State for the exercise of such rights.
39 Of the exiled governments in London during the late war, the legitimacy, both
constitutional and international, of most (i.e., Norwegian, Greek, Luxembourg,
Polish, Yugoslav and Netherlands) was beyond- question (although the Nether-
lands Government had some constitutional difficulties in extraterritorial legis-
lation). The Belgian Government, though minus the King, was, on the whole,
identifiable with the former Government (see Oppenheimer, loc. cit., pp. 579-
80, 581). In various statements, the British and United States Governments
affirmed the de jure character of the Netherlands Government (statement of
British Attorney-General in In re Amand (No.l) [1941] 2 K.B. 239; statement
of United States Government in Anderson v. N.V. Transandine Handelsmaat-
schappij (1942), 289 N.Y. 9, Annual Digest, 1941-2, Case No. 4; also in Re de
Bruijn [1942] 1 D.L.R. 249, Sup. Ct. of Br. Columbia, Annual Digest, 1941-2,
Case No. 29; Haak v. Minister of External Affairs [1942], S.A.L.R., App. Div.,
318, Annual Digest, 1941-1942, Case No. 30, and the Norwegian Government
(statement of British Government in Lorentzen v. Lydden [1942] 2 K.B. 202).
The Czechoslovak National Council and the Free (Fighting) French, however,
had strictly no legal continuity with the previous regimes. See Oppenheimer,
, loc. cit., pp. 570-4, 576-7, 579-80; Cassin, Vichy or Free France? 20 Foreign
Affairs, 1941-1942, p. 102, at pp. 109-12.
The Czechoslovak Government under Benes was, nevertheless, accorded
'full recognition' in 1941 by Great Britain (Lauterpacht, p. 92, n.; Oppen-
heimer. loc. cit., p. 581) and provisional recognition by the United States
(ibid., p. 571). The legality of such a recognition is doubtful (contra, Lauter-
pacht, p. 92, n.). The British and United States recognition of the Free French
as a government was, on the other hand, much delayed (ibid., p. 164, n. 1).
In In re Ortoli (1942), 59 Weekly Notes (N.S.W.) 156, the Australian Minister
of External Affairs certified that the Free French constituted an Allied Power
(Sup. Ct. of New South Wales, Annual Digest, 1919-1942 (Special Supplement),
Case No. 6).
40 [1941] 2 K.B. 239. See also the analogous cases of Re de Bruijn [1942] 1
D.L.R. 249, Sup. Ct. of Br. Columbia (Annual Digest, 1941-2, Case No. 29);
Haak v. Minister of External Affairs [1942] S.A.L.R., App. Div., 318 Sup. Ct.
of S. Africa (Annual Digest, 1941-1942, Case No. 30).
298 Qualified Recognition
Government were applicable to Netherlands subjects in Britain, but
the enforcement of such laws must, however, be dependent upon
the British Allied Forces Act, 1940, and Orders-in-Council enacted
thereunder." In Anderson v. N.V. Transandine Handelmaat-
schappij (1942) " the question was the enforceability of the
Netherlands decree of May 24, 1940, purporting to nationalise
cash and securities belonging to Dutch nationals domiciled in
occupied Holland and which were in the hands of American
depositees. The Supreme Court of New York upheld the decree
on the ground of comity of nations and on the ground that the
decree was conservatory, not confiscatory, and was, therefore,
no offence against the public policy of the forum. By the time
the case came before the New York Court of Appeals, the United
States had entered the war. The Court'was able to fortify its
judgment by referring to the new policy declared by the Secretary
of State.43 In the cognate case of Lorentzen v. Lydden & Co.
(1942)" the court had to decide on the effect of a Norwegian
Order-in-Council " made in Norway on May 18, 1940, either
before, or in the course of, the establishment of the Norwegian
Government in England, which purported to vest in a Norwegian
curator the right to collect claims belonging to owners of ships
registered in Norway. The defendant was a firm doing business
in London, against whom the curator brought action to recover
damages for breach of contract. Atkinson J., giving judgment
41 The applicant, upon obtaining fresh evidence, again challenged the validity of
the Netherlands Decree of April 8, 1940. Application for a writ of habeas
corpus was denied (In re Amend (No. 2) [1942] 1 K.B. 445). The judgment,
however, upheld the right of the court to investigate the validity of the decree
according to Netherlands laws. See Comments in McNair, op. cit., n. 17, p. 274
above, pp. 372-4; Hartmann, Conscription in Allied Armies, 5 M.L.R., 1941-2,
p. 256.
42 (1942) 289 N.Y. 9, Annual Digest. 1941-1942, Case No. 4.
43 Annual Digest, 1941-2, at p. 21. See Comments in McNair, op. cit., pp. 368-71;
Kuhn, The Effect of a State Department Declaration of Foreign Policy upon
Private Litigation — the Netherlands Vesting Decrees, 36 A.J.I.L., 1942, p. 651;
Lyons, loc. cit., n. 7, p. 225 above, pp. 137-8.
44 [1942] 2 K.B. 202. See Comments in Mann, Extraterritorial Effect of Confis-
catory Legislation, 5 M.L.R., 1941-1942, p. 262.
45 The effect of that Order was considered by a neutral Court in The Rigmor,
1942 (Annual Digest, 1941-1942, Case No. 63). An application for the arrest of
a Norwegian vessel requisitioned under the Order, but subsequently chartered
by the British Government, was made while- the vessel was in Swedish waters.
The application was dismissed by the Swedish Sup. Ct. on the ground of
immunity based on British possession. But the court took occasion to state
that the requisition carried out in the territory of another State is binding, if it
takes place without compulsion (ibid., p. 244). See also The Solgry, 1942 (ibid.,
1919-1942 (Special Supplement), Case No. 82).
De Facto and De Jure Recognition 299
for the plaintiff, said : ' It seems to me that the English courts are
entitled to take into consideration the following matters: that
this is not a confiscatory decree, see Article 5 of the decree, that
England and Norway are engaged together in a desperate war
for their existence, and that public policy demands that effect
should be given to this decree.4'
The principle that the de jure government, even if wholly
dispossessed, is the government of the State is not affected by
the new technique of foreign military occupants to govern through
the instrumentality of a servile administration composed of local
inhabitants.47 Such puppet ' governments ' are nothing but organs
of the occupant. Their acts are his acts, governed by the same
rules as the acts of the occupant himself. The military occupant
cannot, under the guise of a spontaneous revolution, legally sub-
stitute a new government for the displaced de jure government.48
No revolt can change the "sovereignty until the occupied area is
either evacuated or reduced to small proportions.49
"At pp. 215-6.
" For the establishment of puppet States and governments in Europe, see Lemkin,
op. cit., pp. ix, 10-12; Annual Digest, 1919-42 (Special Supplement), pp. 286-91;
Langer, op. cit., pp. 223, 246. As regards ' Manchukuo ', see Report of the
Commission of Enquiry, Ser. of L.o.N. Pub. VII, Political, 1932, VII, 12, pp.
97, 106. For the plea of spontaneous separatist movement, see Count Uchida's
statement in the Japanese Upper House, August 25, 1932, cited in Willoughby,
op. cit., n. 3, p. 211 above, p. 374; CavarS, toe. cit., n. 34, p. 17 above, p. 1.
48 [See, however, British statement recognising the Emir Idris el Senussi as ' head
of the Cyrenaican Government', June 1, 1949. At the time of the statement
Great Britain was still occupying the former Italian colonies, and therefore
made it clear that only ' steps compatible with (her) international obligations
would be taken' (The Times, June 2, 1949). This statement is of no inter-
national significance — and refers only to the internal administration of
Cyrenaica.]
49 Baty, op. cit., n. 21, p. 15 above, p. 484. See also ibid., p. 210, n. 1, where it is
argued that the governments of Joseph Bonaparte in Spain and Maximilian in
Mexico were parts of the invading forces rather than internal revolutionary
governments. This view was taken by the United States regarding the ' Roman
Republic' in 1799 (Sec. Pickering to the United States Consul at Rome, June
11, 1799, Moore, Digest, vol. I, p. 129). A separatist movement took place
in the Bavarian Palatinate in 1923. The British Government held the view
that the occupying Allied Powers should not allow secession to take place
(Fauchille, op. cit., n. 24, p. 15 above, t. I, Pt. II, s. 482 (b), p. 10).
The position of the Vichy Government in France was enigmatic. For the
argument that it was illegal and illegitimate, see Cassin, loc. cit., p. 102. It
was admitted, however, (ibid., p. 110), that the representative character of
Vichy was not at first denied. See the judgments of the New York Supreme
Court, Special Term, N.Y. County (1941) and New York Supreme Court, Appeal
Division (1942) in Bollock y.Societe Generate PourFavoriser le Developpement
du Commerce et de I'Industrie en France (30 N.Y.S. (2d) 83), in which the
Vichy Decree was denied application on the ground of public policy, but not
on the ground of the lack of governmental capacity (Annual Digest, 1941-1942,
Case No. 36). In a communication to the President of the Supervisory Com-
mission of the League of Nations, April, 1943, Generals Giraud and de Gaulle
1/
300 Qualified Recognition
Lin conclusion, it may be said that the terms ' de jure '~ and ' de
facto government (or State) ' denote the legal quality of a govern-
mental authority in international law; the terms ' de jure' and
' de facto recognition' denote the extent of recognition that is
accorded to a foreign State or government. The confusion of
the two notions is probably responsible for the innovation of
according military occupants treatment normally accorded to
State governments^ Admittedly, even under the traditional
doctrine, a military occupant is entitled to exercise rights of
administration. But the new doctrine is to liberate the occupant
from the established limits of international law — such as those
provided in the Hague Convention. Social and economic changes
may have necessitated a modification of the traditional doctrine.
It is nevertheless necessary to accept with reserve the proposition
that this necessity has been so great as to justify the disregard
of all distinctions between a military occupant and a State
government.
repudiated the validity of the notice of withdrawal given by the Vichy Govern-
ment on April 19, 1941 (Gross, Review of Balossini's La Perte de la Qualite de
Membre de la Societe des Nations, 1945, 40 A.J.I.L., 1946, p. 231). It is
questionable whether they were entitled legally to do so. A similar notification
of withdrawal was given by the Italian-sponsored puppet Government of
Albania, April 13, 1939 (L.o.N. Off. J.. 1939, p. 246).
PART SIX
RECOGNITION OF BELLIGERENCY AND
INSURGENCY
CHAPTER 19
LEGAL PERSONALITY OF A BELLIGERENT
COMMUNITY
IN consequence of the territorial sovereignty of the State,
questions of peace and order within the territorial limits of
a State are generally considered as matters within the exclusive
competence of that State. In exceptional circumstances, dis-
turbances within a State may develop into such dimensions and
intensity that their repercussions are felt beyond national borders
and the interests of foreign States become directly affected. When
such a point is reached, the matter ceases to be a mere question
of internal order, and becomes one of which international law
is compelled to take cognizance and to regulate.
One school of thought argues that States alone are entitled
to wage a legal war. Only States can become lawful belligerents
with all the consequences of belligerency.1 Armed contentions
between opposing groups within a State for the purpose of seces-
sion or obtaining the power of the State is not war in the technical
sense of the word. It is only 'through the recognition of each
of the contending parties, or of the insurgents, as a belligerent
Power ', that such hostilities may acquire the dignity of a real
* war V Recognition of belligerency is, it is maintained, an act
of the parent government or of a foreign State by which a con-
tending party in a civil strife is clothed with the legal qualification
to make war, and the legal consequences of the international
law of war flow from the moment such recognition is granted.
Evidently, this theory is a corollary of the general theory
of recognition which conceives an act of recognition as creating
or bestowing a capacity or qualification. A political community
which is not so bestowed has, according to this view, no status
in international law. We have argued against the soundness of
this theory with regard to the recognition of States and
governments.3 The same arguments apply to a large measure
1 Oppenheim, vol. 2, ss. 54, 56, 74.
'Ibid., s. 59.
s See above, Parts One and Two.
303
304 Recognition of Belligerency and Insurgency
with regard to the recognition of belligerency. These arguments,
it is believed, can be applied with even greater force here, as
those who argue that an insurgent body can have no right of
war until recognised are generally inclined to maintain that such
an insurgent body, even if recognised, does not possess legal
personality.
According to Oppenheim, a belligerent community has no
'real' international personality. When recognised, it is treated
as though it were an international person.* It is difficult to
explain how an entity which is not a legal person can exercise
rights and be subject to duties under the law. This difficulty
is clearly illustrated in the contradiction between two of his
remarks. In one place he says: 'According to the Law of
Nations, full sovereign States alone possess the legal qualification
to become belligerents.' 5 In another place he says : ' Whenever
a State lacking the legal qualification to make war nevertheless
actually makes war, it is a belligerent, the contention is real war,
and all the rules of International Law respecting warfare apply
to it." If the latter remark be correct, then the qualification
to become belligerent would nof be confined to sovereign States.
The test whether a body is qualified for belligerency would be
whether it is actually making war.
Hall, on the other hand, does not make international person-
ality the exclusive attribute of States. He says : ' Communities
possessing the marks of a State imperfectly, are in some cases
admitted to the privilege of being subject to International Law,
in so far as they are capable of being brought within the scope
of its operation.'7 The criterion of whether a community is a
subject of international law is, according to him, not whether it
is able to meet the requirements of statehood, but whether it is
amenable to international law. This test of legal personality has
been adopted by such writers as Salmond," Fiore,9 and Corbett.
1 Oppenheim, vol. I, s. 63. [Dr. Schwarzenberger states : ' The recognition
of belligerency by either the parent State or third States creates the necessary
degree of certainty by the temporary and provisional admission that, as
long as the insurgents maintain their de facto State organisation and accept
the obligations incumbent upon subjects of international law, they are to
be treated as if they had international personality ' (op. cit., n. 55, p. 22
above, p. 366. Italics added).]
5 Vol. 2, s. 74, p. 196.
• Ibid., s. 75, p. 197.
.' Hall, p. 23. See also Schwarzenberger, op. cit., p. 45.
' Salmond, op. cit., n. 48, p. 18 above, 10th ed., p. 318.
• Fiore, op. cit., n. 25, p. 15 above, Article 30.
Personality of Belligerent Community 305
The last-named writer, writing with reference to the League of
Nations, says:
' If it be conceded then that personality is subjectivity to
rights and duties, the States in creating an entity other than a
State, with distinct rights and duties, thereby create a person.
It is not necessary to inquire, whether the rights and duties apper-
taining to the entity are among those most characteristic of the
State itself; they need only be faculties and obligations defined
by the law governing the relations between the creating States.' 10
It may thus be seen that an entity capable of being subject to
international law must be considered as an international person.
On this ground it may be argued that a belligerent community
must be regarded as possessing international personality. It is
true that a belligerent community does not possess all the attri-
butes of a State, yet that does not alone disqualify it as a person
in international law.11
Whether a belligerent community possesses international
personality is a question upon which international lawyers are
not in complete agreement. Hall, as we have seen, while
admitting other entities than States to international personality,
thinks that a belligerent community is not a legal person and
can have no rights under international law. It is admitted through
recognition to the privileges of international law for the purposes
of the hostilities, and such a recognition, he maintains, ' is from
the legal point of view a concession of pure grace '." Oppenheim
is less unequivocal. On the one hand, he considers a belligerent
community as an ' apparent ' international person, merely to be
treated ' as though it were a State '. On the other hand, he does
not hesitate to admit that once a belligerent community is recog-
nised the civil war becomes a 'real war' in international law."
Hyde takes a similar stand. While insisting that no political
entity which fails to meet the requirements of a State is capable
of being treated as an international person, he allows a recognised
belligerent community to be clothed 'with such privileges with
10 Corbett, What is the League of Nations? 5 B.Y.I.L., 1924, p. 119, at p. 142.
11 Le Normand, op. cit., n. 1, p. 14 above, p. 73. [It should not be forgotten that
various entities and bodies may be recognised as possessing international
personality for limited purposes only, and such personality does not create
statehood, see Advisory Opinion on Reparation for Injuries Suffered in the
Service of the United Nations (1949), I.C.J., Reports, 1949, p. 174, at p. 179.]
12 Hall, pp. 36-9.
" Oppenheim, vol. I, s. 63, vol. 2, s. 59.
20
306 Recognition of Belligerency and Insurgency
respect to the outside State as might be fairly claimed were the
conflict being waged between two independent powers'."
Other writers are more explicit in their support for the
personality of belligerent communities. Hershey, for example,
considers them as the only exceptions besides the League of
Nations to the exclusive claim of States to international person-
ality. To him, a belligerent community is ' an inchoate or
embryonic State ', which, when recognised, is admitted to all the
rights and duties of a State so far as the conduct of the war is
concerned.15 In the same vein, Lawrence argues that, though
belligerent communities are not recognised as sovereign States,
' their governments possess the essential attributes of sovereignty ',
and that their subjection to international law ' is very real as far
as it goes V6
The weakness of the argument of those who deny the legal
personality of belligerent communities is apparent. To argue
that a belligerent community is not a legal person and, at the
same time, that it is permitted to enjoy rights and be subject to
duties under international law, is a manifest self-contradiction.
Something that is not a legal person is non-existent in the eyes
of the law. Rights and duties can only be set in motion by some-
thing the law can recognise. A belligerent body must, as a matter
of logic, be an international person, or it can exercise no rights
and be subject to no duties whatever under international law.
Conversely, if a belligerent community does in fact exercise
rights and fulfil duties which international law recognises, in
its own name and independently of the will of others, it is, by
reason of that very fact, an international person. A belligerent
body, properly organised, is capable of exercising rights and
fulfilling duties under international law in substantially the same
manner as a sovereign State in so far as concerns the prosecu-
tion of the war, although it does not constitute a State, nor is
entitled to represent the State internationally.17
14 Hyde, vol. I, s. 47, p. 198; similarly, Erich, loc. cit., n. 21, p. 15 above, pp. 437-8.
15 Hershey, The Essentials of International Law and Organisation, 1927, p. 157,
n. 1, s. 116.
16 Lawrence, op. cit., n. 5, p. 14 above, s. 41. Other writers arguing for the
international personality of belligerent communities include Fiore (op. cit..
Article 130), Rougier (pp. cit., n. 2, p. 97 above, p. 222) and Bluntschli (op cit.,
n. 10, p. 14 above, s. 512, n. 1).
17 See Lawrence, loc. cit.
CHAPTER 20
BELLIGERENT COMMUNITY AS A
DE FACTO GOVERNMENT
It is undoubtedly true that the notion of belligerency is inseparable
from the existence of war, and all the rules of international law
regulating the conduct of belligerents are primarily concerned
with the relations arising out of the conduct of hostilities. A
belligerent community either establishes itself in the course of
the struggle to become a State or a government of a State, or
collapses and is subdued by the established government. In
either case, it ceases to exist as soon as the war is at
an end. There is, therefore, a large measure of truth in referring
to a belligerent community as a military organisation. But that
truth is only a part-truth; it over-emphasises the military character
of a belligerent community and neglects its capacity as a civil
government. Indeed, the aim of a belligerent body is military
success. Yet, to achieve such military success it must be able to
maintain law and order in the territory under its control, exploit
resources, raise men and supply-materials. Thus, it cannot be
denied that once a belligerent community is organised, its capacity
as a civil government exists side by side with its capacity as a
military force.1
It cannot be denied that a belligerent community enjoys
actual supremacy in the territory under its control and that
individuals living therein can have no choice but to submit to
such supremacy. A third State cannot, without causing
grievous hardships and inequities to the local inhabitants, deny
the legal validity of acts of the belligerent community which
regulate life within its territory. A belligerent community
is a veritable government de facto,2 although only partial
1 McNair, op. cit., n. 17, p. 274 above, p. 353; Jessup, The Spanish Rebellion and
International Law, 15 Foreign Affairs, 1937, p. 260, at p. 270.
2 Scelle, op. cit., n. 20, p. 15 above, vol. I, p. 98. ,[Moore has said that before
insurgents are recognised as belligerents they ' must present the aspect of a
political community or de facto power ' (21 Forum, 1896, p. 291, Collected
Papers, vol. 2, p. 100, cited with approval by Neilsen, Commissioner, in his
dissenting opinion in the Oriental Navigation Co. claim (1928) (Opinions
of Commissioners, 1929, p. 32).]
307
308 Recognition of Belligerency and Insurgency
and temporary and not representing a State in international
relations.
There has been a recent tendency in English courts to take
a broader view of the legal capacity of belligerent communities.'
This view seems to have been concurred in by Professor Smith,
who writes:
' Once the decision has been taken to recognise an insurgent
government as belligerent, the legal consequences of the decision
are not limited to its concession of belligerent rights. So long as
it maintains an independent existence, the insurgent government
is considered to have all the normal rights and liabilities of a
State. Its legal position is not merely that of a military occupant
as defined by the Hague Convention No. IV of 1907.' "
The width of the legal competence of a belligerent community
can only be determined by examining the practice of nations. The
practice of nations in this matter, however, has been neither
uniform nor consistent. A State in whose territory a rebellion
is taking, or has taken, place adopts an attitude often quite at
variance with those of other States, and even the same State may
be found to take different views on different occasions according
to whether the rebellion has taken place in its or another's terri-
tory. However, the general trend evinced from the practice of
States and judgments of courts, both national and international,
seems to be one of allowing more rein to belligerent communities.
§ I. From the Point of View of the Established
Government
Let us first consider the views of nations which have had the mis-
fortune of having civil wars waged on their own soils. The
latest ' instance in English history where a revolutionary party
succeeded in establishing a local de facto government is the
American War of Independence. That war, unfortunately,
3 See above, p. 293.
4 Smith, vol. I, p. 325; same, Some Problems of the Spanish Civil War, 18 B.Y.I.L.,
1937, p. 17.
6 The Irish dispute of 1919-1922 was considered by the Irish Supreme Court as a
rebellion and Dail Eirean was considered to have constituted a de facto
government, Fogarty v. O'Donoghue [1926] I.R. 531. Held contrary by the
Supreme Court of New York, in Irish Free State v. Guaranty Safe Deposit Co.
(1927) 129 Misc. 551; 222 N.Y.S. 182; Hudson, p. 760. [Similarly, the
' Provisional Government of Free India ' set up by Bose during the Second
World War and recognised by Germany, Italy, Japan and their satellites
was regarded by Great Britain as a traitorous body, see Green, The Indian
National Army Trials, 11 M.L.R., 1948, p. 47.]
Belligerents as De Facto Government 309
yielded only a few reported decisions by English courts. In the
first two of these cases (Wright v. Nutt (1788), Folliott v. Ogden
(1789)) the court admitted that the laws of the revolting colonies
were laws of an independent State, but in subsequent cases {Ogden
v. Folliott (1790), Dudley v. Folliott (1740)) their validity was
rejected, on the ground, inter alia, that they had emanated from
unlawful authorities."
The courts of the United States had on numerous occasions
to decide upon the validity of the legislation of the Confederacy.
They generally refused to recognise such legislation on two
conditions, namely, where the legislation was hostile to the United
States and where it was against the rights of loyal citizens, who
during the war resided outside the territorial limits of the
Confederacy.
Thorington v. Smith (1868) 7 is a case in which the United
States Supreme Court upheld the validity of a private contract in
Confederacy currency. The court held that, although the
authority of the Confederacy did not originate in a lawful war,
' in all matters of government within its military lines the power
of the insurgent government cannot be questioned'.8
In Williams v. Bruffy (1877) 9 the question was whether the
sequestration of some goods in accordance with Confederate law
could be set up as a bar to an action for the breach of a sales
contract made during the Civil War between a person residing
in Pennsylvania and another in Virginia. The Supreme Court
of the United States reiterated the principle of its decision in
Horn v. Lockhart (1873) 10 that acts of a local de facto govern-
ment, apart from those which were hostile to the established gov-
ernment or impaired the rights of loyal citizens, were in general
to be treated as valid and binding.11
In Sprott v. United States (1874) 12 the Supreme Court of the
United States had to consider the capacity of the Confederate
6 See above, pp. 158, 172.
7 (1868) 8 Wall. 1. Followed in Delmas v. Ins. Co. (1871) 14 Wall. 661; The
Confederate Note Case (1873) 79 Wall. 548; Bissell v. Heyward (1877) 96 U.S.
580. Approved but distinguished in Hanauer v. Woodruff (1872) 15 Wall.
439, 448.
8 At p. 11.
' (1877) 96 U.S. 176.
10 (1873) 17 Wall. 570.
11 At p. 192. The same principle was applied in Texas v. White (1868) 7 Wall.
700, 733.
12 (1874) 20 Wall. 459.
310 Recognition of Belligerency and Insurgency
government to take, hold or convey title to property. Though
the court based its judgment on other grounds, the de facto
character of the Confederate government was brought into
prominence by the dissenting opinion of Justice Field. The
claimant, it appears, claimed title to some cotton which he had
bought from an agent of the Confederate Government. The
Court of Claims decided against him on two grounds : (a) that
the government of the Confederate States was an unlawful
assembly, and (b) that the sale of cotton by the Confederate
Government had treasonable intent and was illegal. In affirming
the judgment, the Supreme Court relied mainly on the second
ground. While ' no validity can be given in the courts of this
country to acts voluntarily performed in direct aid and support
of its (the Confederacy's) unlawful purpose ', the court neverthe-
less conceded that ' So far as the actual exercise of its physical
power was brought to bear upon individuals, that may, under
some circumstances, constitute a justification or excuse for acts
otherwise indefensible . . .' 13 The court, in basing its judgment
upon the second ground, naturally found it unnecessary to decide
upon the question of the general validity of the acts of the Con-
federacy. It fell upon Justice Field, who, in his dissenting
opinion, denied that the transaction was in aid of the rebellion,
to take up the point. He claimed that it was a principle recog-
nised 'by all writers on international law, . . . that a government
de facto has, during its continuance, the same right within its
territorial limits to acquire and to dispose of movable personal
property which a government de jure possesses '. " He pointed
out that in United States v. McRae (1869) 15 and United States
v. Prioleau (1865) 16 the Government of the United States had
asserted its right to succeed to Confederate property which the
Confederate Government had the capacity to acquire and own,
and this view was concurred in by the English courts.
Baldy v. Hunter (1897) " decided thirty years after the war,
having profited by a generation of judicial experience, may prob-
ably be taken as a mature pronouncement of the law on this
13 (1874) 20 Wall. 459, p. 465.
11 Ibid., p. 471.
15 (1869) L.R. 8 Eq. 69.
16 (1865) 2 H. and M. 559.
"(1897) 171 U.S. 388.
Belligerents as De Facto Government 311
matter. In this case the court was asked to decide whether an
investment during the war by a guardian of money of his ward
in bonds of the Confederate States was unlawful, both parties
being residents within Confederate territory. Giving answer in
the affirmative, the court proclaimed the following principles,
which may be regarded as the settled view of the American courts :
'That the transactions between persons actually residing
within the territory dominated by the government of the Con-
federate States were not invalid for the reason only that they
occurred under the sanction of the laws of that government or
of any local government recognising its authority;
' That within such territory, the preservation of order, the
maintenance of police regulations, the prosecution of crimes, the
protection of property, the enforcement of contracts, the celebra-
tion of marriages, the settlement of estates and the transfer and
descent of property, and similar or kindred subjects were, during
the war, under the control of the local governments constituting
the so-called Confederate States;
' That what occurred or was done in respect of such matters
under the authority of the laws of these local de facto governments
should not be disregarded or held to be invalid merely because
those governments were organised in hostility to the Union
established by the national Constitution, this, because the exist-
ence of war between the United States and the Confederate States
did not relieve those who were within the insurrectionary lines
from the necessity of civil obedience, nor destroy the bonds of
society, nor do away with civil government or the regular adminis-
tration of the laws, and because transactions in the ordinary
course of civil society as organised within the enemy's territory,
although they may have indirectly or remotely promoted the ends
of the de facto or unlawful government organised to effect a dissolu-
tion of the Union, were without blame " except when proved to
have been entered into with actual intent to further invasion or
insurrection"; and,
' That judicial and legislative acts in the respective States
composing the so-called Confederate States should be respected
by the courts if they were not " hostile in their purpose or mode
of enforcement to the authority of the National Government,
and did not impair the rights of citizens under the constitution ".' "
18 (1897) 171 U.S. 388, pp. 400-1.
312 Recognition of Belligerency and Insurgency
§ 2. From the Point of View of Third States
The question of the position of belligerent communities from the
point of view of third States may be examined under the headings
of act of government, legislation, and succession.
Act of government. Some of the earlier cases decided in the
English Court of Chancery related to the revolution in the
Spanish American Colonies. The issues in those cases were
unfortunately distorted and were confused with the question of
the recognition of independence.19 The Court did not seem to
consider the problem of recognition as anything but the recogni-
tion of independence. Consequently, the principle underlying
these decisions seems to suggest that a community, if not recog-
nised as an independent State, can be recognised as nothing at
all. Thus, in Doloret v. Herring and Co. (1823), when a motion
was made for an injunction to restrain the contractors of a loan
for the unrecognised revolutionary Colombian Government
from sending out the money held by them, Lord Eldon observed
that, since the Colombian Government had not been recognised
by the British Government, the court must ignore its character
as a government.20 Similar decisions were given in Jones v.
Garcia del Rio (1823) " with regard to a contract for loans to
the unrecognised Peruvian Government, and Thompson v. Powles
(1828) " with regard to purchase of Guatemalan securities. In
these cases, "the court did not seem to regard the status of a
belligerent community as entitled to any consideration so long as
its independence had not been recognised.
In the Common Law Courts, a similar decision was given in
Henderson v. Bise (1822).23 It was held that in Section 7 of the
Act 7 Geo. II, C. 8, the expression ' public stocks and securities '
must be taken to mean ' securities recognised by the British
Government ' and was not applicable to ' Colombian bonds '.
But in other cases regarding Spanish America, a different line of
"Walker, Recognition of Belligerency and Grant of Belligerent Rights, 23
Grotius Transactions, 1937, p. 178.
20 The Times, January 21, 1823. The case was not finally disposed of until
March 25, The Times, March 26, 1823. This and the following cases decided
in the Court of Chancery have been reviewed in Bushe-Fox, loc. cit., n. 8,
p. 136 above, p. 63.
21 (1823) Turn. & R. 297.
"(1828) 2 Sim. 194.
" The Times, November 1, 1822.
Belligerents as De Facto Government 313
reasoning was followed. In Kinder v. Everett (1823) 24 an agent
of the unrecognised State of Peru was awarded the sum on the
account of the Peruvian State of which he claimed to be custodian.
In Revenga v. Mackintosh (1824)" evidence was admitted to
prove the official position of a person claiming to be the envoy
of the unrecognised Republic of Colombia. In Yrissari v. Clement
(1826) 26 a document bearing the seal of the unrecognised Chilean
State was allowed in evidence to prove a person's position as
Chilean envoy. Although these cases may be taken to illustrate
the practice of courts to give judicial acknowledgment of
States not recognised by the executive department," they
also show that an insurgent body, while not constituting an
independent State, may, nevertheless, have some status in
foreign courts.28
In The Dart and The Happy Couple (1805),29 decided by the
Vice-Admiralty Court at Halifax, Nova Scotia, the court did not
deny the de facto change in the situation of St. Domingo, then in
revolt against France, though it deferred to the government for
a definition of the legal position. In similar cases shortly after-
wards,30 when certain Orders-in-Council had permitted British
vessels to trade at ports in St. Domingo not under actual French
control, Lord Stowell held that such ports were no longer to be
regarded as enemy ports. The judgment seems to suggest that
an insurgent body, having in fact freed itself from the control of
the parent government, must, from the point of view of inter-
national law, be considered as constituting a separate entity.31
The assertion by an insurgent body of the right of neutrality
as against the enemies with whom its parent government was at
war was, however, denied in The Mary (1814).32 An American
21 The Times, December 22, 1823.
25 (1824) 2 B. & C. 693; The Times, April 23, May 7, 1824.
26 (1826) 3 Bing, 432.
27 Bushe-Fox, Unrecognised States; Cases in the Admiralty and Common Law
Courts, 13 B.Y.I.L., 1932, p. 39; also above, p. 244.
28 It may be noted that the British Government, in revoking its previous embargo
on arms on February 21, 1823, had impliedly recognised the belligerency of
the Spanish Colonies (Smith, vol. I, p. 279).
29 Stewarts, Vice-Adm. Cases, Npva Scotia, 65.
30 The Manilla (1808) Edw. 1; The Pelican (1809) Edw. Appendix D.
31 It may be argued that the fact that Great Britain was at war with France at
the time could not fail to introduce elements of irregularity into the case. A
contrary decision was given by an American court in Clark v. U.S. (1811) 3
Wash. C.C. 101, Fed. Cases, II, 838, cited in laffe, op. cit., n. 21, p. 15 above,
p. 132.
32 See Bushe-Fox, loc. cit., p. 40.
314 Recognition of Belligerency and Insurgency
privateer was captured by a British warship in a port occupied
by Venezuelan insurgents. The insurgent Government protested
on the ground of the violation of its neutrality and the Vice-
Admiralty Court at Tortola refused to condemn the vessel. On
appeal the decision was reversed on the ground that Venezuela
was not recognised.
During the latter half of the nineteenth century the British
attitude towards the recognition of the de facto capacity of
insurgent communities became less and less hesitant. In an
opinion of June 8, 1861," regarding the power of the insurgent
government in New Granada to levy duties upon British goods,
the Queen's Advocate, Sir James Harding, advised that, as the
British Government desired to remain neutral, it could not dis-
pute the right of the de facto government of the seceded States
to maintain law and order, and to levy customs duties at its ports.
In another opinion " regarding the insurrection in St. Domingo,
Harding said:
' Each de facto government engaged in a civil war is " prima
facie " a regular government in relation to those Foreign Nations
who remain neutral, and is entitled as such to exercise complete
sovereign authority within the territory actually in its power.'
In this case it was thought that the regulation of currency and
the forbidding of the circulation of certain kinds of paper money
was within the sovereign authority ordinarily exercised by, and
incident to, regular governments.
In the United States, early decisions of the Supreme Court
have definitely settled upon the principle that belligerent com-
munities are entitled to the rights of war, and their acts with
respect to such matters are valid in neutral courts." In Kennett
v. Chambers (1852) " the court refused to uphold a loan made
to Texas which was in revolt against Mexico. The ground was,
however, not that Texas had no capacity to make contracts, but
that the loan was in violation of the neutrality of the United
States. As regards the capacity of belligerent communities for
civil government, President Grant's special message to Congress
" Smith, vol. I, p. 327. <
"Dated April 14, 1858 {ibid., p. 329).
15 U.S. v. Palmer (1818) 3 Wheat. 610; The Divina Pastora (1819) 4 Wheat. 52;
The Josef a Segunda (1820) 5 Wheat. 338.
" (1852) 14 How. 38. See criticisms in Jaffe, op. cit-., p. 126, n. 9.
Belligerents as De Facto Government 315
on June 13, 1870, is in point. In this message the President laid
down as a condition for the recognition of belligerency that —
' There must be, above all, a de facto political organisation
of the insurgents sufficient in character and resources to constitute
it, if left to itself, a State among nations capable of discharging
the duties of a State, and of meeting the just responsibility it may
incur as such toward other powers in the discharge of its inter-
national duties.' "
If the possession of capacity for civil government is a condition
for the recognition of belligerency, it cannot be argued that a
belligerent community so recognised does not possess the capacity
for civil government.
Among the various functions of government which an insur-
gent government undertakes to exercise, the one, the validity of
which has received the practically unanimous support of authori-
ties, is in the matter of the collection of taxes and duties in the
territories under its control.
In numerous instances during or after revolutions in the
Latin American Republics the question arose whether customs
duties, taxes, or dues collected by the insurgent body were valid
as against the established government when the place or the
object in question passed under the control of the latter. The
United States consistently took the view that the revolutionary
body is entitled to the obedience of the residents within the
territory under its control and submission to it on the part of
the people is not wrongful and, therefore, the established govern-
ment is not entitled to a second payment.38 ' The obligation of
obedience to a government at a particular place, in a country,'
wrote Secretary Fish, ' may be regarded as suspended, at least,
when its authority is suspended, and is due to the usurpers, if they
choose to exercise it.' "
The same policy was followed by the United States in regard
to the collection of taxes by the Confederate Government. Suits
for the repayment of such taxes originally instituted were later
37 Moore, Digest, vol. I, p. 194; Dana's Wheaton, s. 23, n. 15.
38 Moore, Digest, vol. I, pp. 49-51. The United States protested against taxes
and forced loans imposed by insurgent governments only when they appeared
to be discriminatory or confiscatory (Hackworth, vol. I, pp. 137-42).
39 Fish to Nelson, U.S. Minister to Mexico, February 11, 1873, regarding the
demand of the Mexican Government for a second payment from British
merchants at Mazatlan, who had previously paid duties to the insurgents
(Moore, Digest, vol. I, p. 49).
316 Recognition of Belligerency and Insurgency
discontinued, in view of the Supreme Court decision in United
States v. Rice (1819)." The same position was taken by the
United States in Speyers v. The United States" and in the
Bluefields Controversy (1899)."
This view has also been adopted by international arbitral
tribunals." In the Guastini case (1903)," however, the ground for
the award was slightly different from the doctrine expounded by
Secretary Fish. Instead of basing the right of insurgents to collect
duties on the ground of obedience by the people, the Commission
argued on the ground of local benefits. Since the legitimate
government performed no act of government, it was held that
it was not entitled to collect anew taxes ' once paid to insure the
benefits of local government '."
International practice is less uniform as regards other acts
of belligerent communities. In cases where the insurgent govern-
ment is in possession of ports, foreign maritime States would find
themselves faced with the alternative either to acquiesce in certain
consular functions being exercised by agents of the insurgent
government or to stop the trade with those ports altogether.
Maritime nations have been reluctant to adopt the latter course."
On the question whether the title to property can be changed
by the acts of insurgent governments, the English cases U.S. v.
Prioleau (1865) " and U.S. v. McRae (1869)48 have answered in
the affirmative. In the United States, however, opinions seem
to be divided. In O'Neil v. Central Leather Co. (1915)" the
" (1819) 4 Wheat. 246.
41 Moore, International Arbitrations, vol. Ill, pp. 2868, 2870.
" Moore, Digest, vol. I, pp. 50-1.
"E.g., U.S.-French Mixed Claims Com. in the De Forge case, 1880 (Moore,
International Arbitrations, vol. Ill, p. 2781); Italo-Venezuelan Mixed Claims
Com. in the Guastini case, 1903 (Ralston, Venezuelan Arbitration of 1903,
1904, p. 730); U.S.-Mexican Claims Com. (1868) in Adams v. Mexico (Moore,
op. cit., 3065), Virginia Antoinette {ibid.), and Speyers v. U.S. {ibid., 2868).
44 Ralston, loc. cit.
411 Opinion of Ralston, Umpire, ibid., p. 751.
46 See Communication of Secretary Seward to the Mexican Minister, August 9,
1865, regarding the activities of commercial agents of the Maximilian Govern-
ment {Dana's Wheaton, s. 76, n. 41, p. 110). See also the communication of
the State Department to the Spanish Ambassador, July 31, 1914 (Hackworth,
vol. I, p. 143).
47 (1865) 2 H. & M. 559; see below, p. 324.
48 (1869) L.R. 8 Eq. 60; see below, p. 324.
49 (1915) 87 N.J.L. 552, 555, 559; 94 Atl. 789, 791, 792; cited in Compania
Minera Ygnacio Rodriguez Ramos v. Bartlesville Zinc Co., below, n. 50,
at p. 182.
Belligerents as De Facto Government 317
Court of Errors and Appeals of New Jersey held that the Villa
faction in Mexico had the belligerent right to confiscate property
and could pass valid title to purchasers. The Supreme Court of
Texas, however, took a contrary view in Compania Minera
Ygnacio Rodriguez Ramos v. Bartlesville Zinc Co. (1925)/° which
arose from substantially the same circumstances. In rejecting
O'Neil v. Central Leather Co., the Court said that the recognition
as a belligerent ' could not be referred to as any sort of recognition
of it as a government',51 and that when such a government of
paramount force fails, it leaves nothing behind. 'Its contracts
are void, it has no power or ability to compensate for property
taken, and its acts of seizure, as far as passing title to the property
seized and sold, are also nullities and cannot pass title.' "
An interesting case arose during the Congressionalist revolt
against the Balmaceda Government in Chile.63 An American
firm obtained a concession to lay a submarine cable in Chile.
Article 9 of the concession provided : ' The Government reserves
the right of suspending the service or the use of the cable in case
of danger to the security of the State.' Among other complaints,
the company claimed damages from the Chilean Government
for the suspension of the use of the cable by the Congressionalists
during the revolution. The Chilean Government, paradoxically,
contended that the Congressionalist party was a de facto govern-
ment and had the right to suspend the use of the cable under
Article 9 to the same extent as the legitimate government. The
Mixed Claims Commission found for Chile on the ground that
' the party of the Congressionalists had the character of a de facto
government, possessing in the territory subject to its dominion
the right to exercise jurisdiction according to the laws enacted
and engagements accepted by and for the country. . . .' The last
remark seems even to go as far as to say that an insurgent
government could act in the name of the whole State."
Legislation. Little judicial authority can be found in earlier
cases with regard to the legal capacity of a local de facto govern-
ment to enact laws that can be regarded as valid by foreign States.
50 (1925) 115 Tex. 21, 275 S.W. 388, 41 A.L.R. 737, Hudson, p. 179.
slIbid., p. 181.
" Ibid., p. 182.
5> Central and South American Telegraph Co. (U.S.) v. Chile (1894), Moore,
International Arbitrations, vol. Ill, p. 2938.
" See criticism in Borchard, op. cit., n. 61, p. 129 above, p. 211.
318 Recognition of Belligerency and Insurgency
The circumstances in The Gagara (1919)" bore some resem-
blance to a situation arising out of a civil war. But the Estonian
National Council which was engaged in hostilities with the Soviet
Government was considered by some writers to be, not an insur-
gent body in a civil war against the legitimate (Soviet) govern-
ment, but rather a partial successor of the Russian Empire,
engaged in war with a foreign government." The case is, there-
fore, not illustrative of the legislative capacity of a belligerent
community.
During the Spanish Civil War, the question of the legal status
of belligerent communities aroused wide interest, principally as
the result of several cases decided in English courts. In Banco
de Bilbao v. Sancha; Same v. Rey (1938)," the plaintiff was a bank
incorporated under Spanish law with its head office at Bilbao
in the Basque country. The Basque Government issued a decree
on December 23, 1936, purporting to amend the constitution of
the bank, and, on January 5, 1937, issued an order under that
decree for the reorganisation of the board of directors. When
the suit was instituted, the defendants disputed the validity of the
order and the right of the plaintiffs to sue in the name of the bank.
It was held by the court of first instance that the Basque decree
was ultra vires the legislative authority of the Basque Government
under the law of October, 1936. The plaintiffs were, therefore,
not the directors of the bank. The plaintiffs appealed. Before
the appeal was heard (in February, 1938), the Nationalist insur-
gents had occupied Bilbao (on June 10, 1937). The plaintiffs
then moved the head office of the bank from Bilbao to places
under the control of the Republican Government. On August 22
and September 30, 1937, the Republican Government issued
decrees transferring the head offices of all companies whose head
offices were in the Basque country to Barcelona or Valencia, and
validating retrospectively the Basque Banking Decree of
December, 1936, and all acts done under it. The Nationalist
Government also issued decrees on December 29, 1937,
nullifying all changes in the legal domicile of Basque companies
made since July, 1936, and all proceedings by the Republican
Government against the original directors of the bank. The
ss [1919] P. 95.
" McNair, op. cit., p. 345, n. 4.
" [1938] 2 K.B., 176.
Belligerents as De Facto Government 319
issue before the Court of Appeal was which of the conflicting
laws should be applied.
The Court decided, in the first place, that the law governing
the statutes of the bank should be the law of the place of the
corporate domicile, Bilbao. As there were at the time two
governments claiming jurisdiction over that territory, the question
was referred to the Foreign Office. In a letter of February 17,
1938, to the solicitors, the Foreign Office stated that the Govern-
ment set up by the Nationalists in the Basque country since their
capture of Bilbao on June 19, 1937, was recognised by His,
Majesty's Government as the Government which exercised de
facto administrative control over a considerable portion of the
Basque country including Bilbao, and that His Majesty's Govern-
ment recognised the Republican Government of Spain as the
de jure government of the whole of Spain, including the area in
which it recognised the Nationalist Government as exercising
de facto administrative control.
Relying upon the principles of Luther v. Sagor (1921),58 White,
Child and Beney, Ltd. v. Eagle Star and British Dominion Ins.
Co., Ltd. (1922),59 and Bank of Ethiopia v. National Bank of
Egypt (1937),60 the court decided that ' no regard can be paid for
the present purpose to the legislation enacted by the Republican
Government, which during the material period cannot be
treated in this court as the Government of the area in which
Bilbao is situated ', and, therefore, the Nationalist decree should
be applied.
This was a very strong case."1 Not only was it held that the
laws of an insurgent government are entitled to the respect gener-
ally accorded to the laws of a sovereign State, but it was also
held that such laws are superior to any other law concerning
matters within the territorial limits of that government, even the
laws of the rival government which is still recognised de jure by
the government of the forum. It is possible that the court had
understood the Foreign Office statement as meaning that some
sort of ' de facto recognition ' as State government had been
38 [1921] 1 K.B. 456; 3 K.B. 532.
" (1922) 38 T.L.R., 367, 616.
60 [1937] Ch. 513.
61 The case of Bank of Ethiopia v. National Bank of Egypt, supra, is closely
resembling, but it concerned a situation arising out of an international, rather
than a civil, war.
320 Recognition of Belligerency and Insurgency
accorded by the executive department. However, as a belligerent
community, the power allowed to it by the court is definitely
wider than that permitted by the Hague Convention of 1907."
In The Cristina (1938) 63 a Spanish ship registered at Bilbao
was requisitioned by the Republican Government of Spain after
the fall of Bilbao to the insurgents. The question of the validity
of the requisition decree was, however, prevented from being
decided upon by the House of Lords owing to the sovereign
immunity of the Spanish Government. Had it not been so, it
would have raised a nice question how far decrees of a legitimate
Government may affect ships registered at places under the control
of insurgents.64 A very similar case decided in a Dutch court
seemed to have shed some light on this question.
In this case, The Sendeja (1937)," the court refused to grant leave
to the Spanish Government to detain in a Dutch port a ship which
was registered at Bilbao. It was held that the requisition decree
of the Republican Government was promulgated after the fall
of Bilbao. Since the Spanish Government was unable to fulfil
its duty of protecting its subjects living at Bilbao against an
internal enemy, it would not be entitled to compel them to col-
laborate with it in combating the enemy in whose power they
were and thus expose them to great danger in respect of their
lives, liberty and property. The application of the requisition
decree to the owners who were domiciled in Bilbao was consid-
ered as contrary to the rules of public morality prevailing in
Holland.
The case of The Arantzazu Mendi ( 1 939)" must, in every respect,
be regarded as one of the most notable decisions in recent years.
Here the House of Lords was, for the first time, brought face to
face with the principle evolved in the lower courts regarding the
legal position of belligerent communities. The circumstances in
this case were substantially the same as in the two cases discussed
above. The Arantzazu Mendi, a Spanish ship registered in Bilbao,
was requisitioned by both the Republican and the Nationalist
Governments, but the master undertook to hold the ship for the
62 Above, pp. 293-6.
68 [1938] A.C. 485.
"See Note, 19 B.Y.I.L., 1938, p. 244, n. 1.
65 District Court of Haarlem (1937); Annual Digest, 1935-1937, Case No. 74.
M [1938] P. 233; [1939] P. 37; [1939] A.C. 256.
Belligerents as De Facto Government 321
Nationalists. Thereupon the Republican Government issued a
writ in rem for possession of the ship and served a warrant of
arrest. The Nationalist Government moved to set aside the
writ and warrant on the ground that the action impleaded a
foreign sovereign State.
The questions for decision were: (a) Was the Nationalist
Government entitled to sovereign immunity? (b) If it was so
entitled, did the process amount to impleading such a sovereign?
In reply to an enquiry whether the Nationalist Government
was ' recognised as a foreign Sovereign State ', the Foreign Office
stated its view in a letter dated May 28, 1938, the relevant parts
of which were as follows :
(1) ' His Majesty's Government recognise (sic) Spain as a foreign
sovereign State.
(2) ' His Majesty's Government recognises the Government of
the Spanish Republic now having its seat in Barcelona as
the de jure Government of Spain. . . .
(5) ' His Majesty's Government recognises the Nationalist Gov-
ernment as a Government which at present exercises de facto
administrative control over the larger portion of Spain. . . .
(8) ' The Nationalist Government is not a Government subordin-
ate to any other Government in Spain.
(9) ' The question whether the Nationalist Government is to be
regarded as that of a foreign sovereign State appears to be
a question of law to be answered in the light of the preceding
statements and having regard to the particular issue with
respect to which the question is raised.' 67
On the basis of this letter, Bucknill J. answered both of the
questions in the affirmative. In answer to the question how a
single State could have two governments, the learned judge said :
' It may seem a contradiction in terms, that there should be
two sovereign governments in Spain. There may be in the eyes
of international law two sovereigns, one de facto, and one de jure,
in the same country. It seems to me that the law, based on the
reality of facts material to the particular case, must regard as
having the essentials of sovereignty a government in effective
administrative control over the territory in question and not
subordinate to any other government, because its decrees are the
"[1938] P. 242-3.
322 Recognition of Belligerency and Insurgency
only legal authority which governs the area to which the subject
matter of the dispute belongs.' 68
The judgment was affirmed by the Court of Appeal. Slesser
L.J., in support of the argument of Bucknill J. that two
governments may exist in one State, said :
' Even if there was no authority to that effect, I should myself
unhesitatingly take the view that once it is found as a fact that
within certain boundaries . . . there was a de facto government,
the mere fact there was another government, claiming to be
the de jure government, in that area, in the unit which is called
Spain, if it be a unit, would not deprive the court of the duty of
finding, on that statement, that the de facto government — which
points to some orderly and organised institution — is so organised
in that area, although fluctuating, as to possess the powers of a
State.
' In those circumstances I think that it is a proper conclusion
that the Spanish Nationalist Government has been recognised
by His Majesty de facto, and must be regarded by the Court as
a sovereign State.' 69
In the House of Lords the judgment was again affirmed.
Since the House regarded the recognition by the Government
as a recognition of a sovereign government it was almost bound
to hold a broad view of the capacity of the insurgent government
thus recognised. Lord Atkin, delivering the opinion of the House,
said : —
' By " exercising de facto administrative control ", I understand
exercising all the functions of a sovereign government, in main-
taining law and order, instituting and maintaining courts of jus-
tice, adopting or imposing laws, regulating the relations of the
inhabitants of the territory to one another and to the Government.
It necessarily implies the ownership and control of property
whether for military or civil purposes, including vessels whether
warships or merchant ships. In these circumstances it seems to
me that the recognition of a Government as possessing all those
attributes in a territory while not subordinate to any other Gov-
ernment in that territory is to recognise it as sovereign, and for
the purpose of international law as a foreign sovereign State.' T0
68 [1938] P. 233, p. 245.
'•[1939] P. 45.
'"[1939] A.C. 264-5.
Belligerents as De Facto Government 323
The judgment has met with a mixed reception from inter-
national lawyers. Professor Lauterpacht 71 thinks that, while de
jure recognition is not permissible during war, de facto recognition
is, however, unobjectionable. But an insurgent body so recog-
nised may possess not all the attributes of the State, but only those
concerning the validity of internal acts.
It is believed that the correctness of the judgment depends
upon the interpretation of the Foreign Office letter. If it is meant
by that letter that the British Government had recognised the
Nationalists as a State Government, though the recognition was
de facto, then the according of immunity would be fully justified
(in which case, the British Government would be committing an
offence against the Republican Government of Spain, as the
recognition would be durante bello). If, on the other hand, the
recognition was merely that of a local de facto authority, it would
be arguable whether it was entitled to sovereign immunity. There
is no doubt that a belligerent community possesses certain charac-
teristics of government. But it is quite another matter to say
that because it possesses these characteristics it must be regarded
as none other than the government of a sovereign State.72
The correct interpretation of the Foreign Office letter would
seem to be that the de jure government at Barcelona was the
Government of Spain. The Nationalist regime did not represent
a State recognised by Great Britain, but was recognised as a local
de facto authority over a particular part of Spain. Whether such
a recognition might be regarded as the recognition of a sovereign
State and what rights it was entitled to exercise were questions
of law to be answered by the court. It is suggested that the
court should have said that the recognition of the Nationalist
regime as the government of a State had not been established.
Upon the basis of this circumstance, the court might then decide
whether the right of immunity may be accorded to a local de facto
authority.73
Succession. The necessity of treating a belligerent body as
a de facto government may be further shown in matters of suc-
cession. Where a belligerent community is finally suppressed
" Lauterpacht, p. 294.
72 This seems to be the argument of Lord Atkin, quoted above.
73 Accord, Briggs, loc. cit., n. 1, p. 268 above, p. 689. See also Baty, he. cit.,
n. 24, p. 293 above.
324 Recognition of Belligerency and Insurgency
and leaves behind it a bundle of rights and obligations, it is
often found impossible to ignore them or to treat them as
belonging to the private individuals who once composed the
government.74 Where the property of the rebel government is
found within the territory of a foreign State a distinction is made
between that which formerly belonged to the parent State and
has been seized by the rebel government, and that which has been
acquired by the rebel government itself. In the former case, the
property can be recovered by the established government in a
foreign court by title paramount; in the latter case, it is recoverable
by virtue of its right of succession."
An illustration of the former situation may be found in King
of the Two Sicilies v. Willcox (1850).76 The rebellious subjects
of the King possessed themselves of some property of the
King. It was held by Shadwell V.C. that the rebels ' did not
acquire, therefore, any right to the property as against their
sovereign.' 77
For recovery by succession, two cases — U.S. v. Prioleau (1865)'*
and U.S. v. McRae (1869) " — are illustrative. In both cases the
question was not only the succession to rights, but also that to
correlative obligations. In both cases the fact of the existence of
the rebel body as a de facto government was emphasised, and it
was strongly hinted that only in virtue of this fact was any
succession possible.
In U.S. v. Prioleau (1865) Sir W. Page Wood, V.C., said:
' If the case had been that of a body of mere robbers devas-
tating and plundering the territory of the United States, our
courts might have interfered to restore the property so acquired;
but then the rightful claimants would have been not the United
States Government, but the persons who had been robbed. It
is only because the money was raised by a de facto government
"The abortive revolutionary movement in Ireland before 1922 was held by the
Sup. Ct. of New York to have failed to constitute a government, and funds
collected for the revolution were returned to the original contributors. See
Irish Free State v. Guaranty Safe Deposit Co. (1927), 129 Misc. 551; 222
N.Y.S. 182.
78 Oppenheim, vol. I, p. 157.
76 (1850) 1 Sim. (N.S.) 332.
71 Ibid., 333.
78 (1865) 2 H. & M. 559.
7»(1869)L.R. 8 Eq. 69.
Belligerents as De Facto Government 325
that the United. States can come here to claim at all. Had the
money been obtained by mere robbery it would never have
become public property. It only acquired that character because
it was levied by an authority exercising rights of government.' 80
U.S. v. McRae (1869) is a case in which the United States
Government claimed against an agent of the suppressed Con-
federate Government for an account of his dealings in respect of
a Confederate loan raised in Great Britain. It was held that the
right of the United States to the property was derived only through
succession to a public power. It was not a paramount right
acquired by itself."
The question of succession to obligations presents a more
difficult problem. Authorities are not agreed as to the extent of
succession to obligations in State succession.82
Two points, however, seem to be more or less established:
that the liability to succession is greater where the obligation in
question is correlative to a right which the succeeding State seeks
to take over; and that the succeeding State is not liable for debts
contracted for the purpose of waging war against itself. The first
point has been decided by English courts in U.S. v. Prioleau
(1865) and U.S. v. McRae (1869) (supra). The second point has
received the support of such writers as Westlake and Keith.83 The
latter principle must be deemed to apply with even greater
appropriateness to the case of a rebellion, since the rebels origin-
ally owed allegiance to the legitimate government and lending
money to them for the purpose of rebellion incurs great responsi-
bilities. Sir Robert Phillimore, in a reply to an inquiry whether
it was- advisable for the British Government to intervene on
behalf of British subjects in claiming from the United States
certain loans they had contracted with the Confederacy, gave
the answer in the negative. It would be unfair, he thought, to
burden the conqueror with an obligation which would be 'to
defray the cost, not only of his own conquest, but of the resistance
80 (1865) 2 H. & M. 564. Italics added.
" (1869) L.R. 8 Eq. 69.
82 Hall (p. 123) thinks that there is a general succession. Contra, Keith, Theory
of State Succession, 1907, Ch. VIII; Oppenheim, vol. I, s. 82; [Schwarzenberger
points out that ' ft would be an overstatement to assert that the (World) Court
proclaimed the principle of general succession of the succeeding State into
rights and duties of its predecessor ' (op. cit., n. 55, p. 22 above, p. 87).]
" Westlake, International Law, vol. I, pp. 75-83; Keith, op. cit., p. 65.
326 Recognition of Belligerency and Insurgency
of his enemy '.81 The United States Government, however, went
further. It refused to be bound by all the debts of the Confederacy,
whether directly concerned with the war or not. The Anglo-
American Mixed Claims Commission established under the
Washington Treaty of 1871 decided that the United States were
' not internationally liable for the debts of the Confederacy, or
for the acts of the Confederate forces '.8S
Apart from these two special circumstances, the liability of
a State for the obligations of its predecessor depends upon whether
they are contractual or delictual in nature. It is generally held
that the latter class of obligations do not pass.86 As to contractual
obligations, no general agreement can be adduced. Keith,87 while
acknowledging that there are a large number of writers, inter-
national treaties and political and judicial authorities in favour
of the doctrine that the succeeding State steps into the civil
liabilities of the extinct State, nevertheless maintains, upon the
authority of West Rand Central Gold Mining Co. v. The King
(1905) 88 and the British practice in connexion with the annexa-
tion of the South African Republics, that the acceptance of
contractual obligations by the victor is a mere matter of
expediency and good grace, and cannot be considered as a
legal duty.
As the succession of a legitimate government to a suppressed
rebel government partakes more of the character of a succession
of States than that of governments (in view of the extinction of
a separate entity), it is believed that the principles of State succes-
sion may, by analogy, be applied to such a situation. But to what
extent such an analogy is relevant seems to depend upon the
following considerations: the extent of authority exercised by
the revolutionary body; the manner in which such authority is
established; and the nature of the obligation incurred.
In considering how far the obligations incurred by a rebel
81 Smith, vol. I, p. 412. It may be interesting to note that in the Cuculla case
(1876) the U.S.-Mexican Claims Commission, instead of relying upon the
ground that the debt was incurred for the expressed purpose of promoting
the revolution, curiously enough took the more difficult line of arguing that
the Zuloaga Government (which was recognised by most States, including
the United States who later withdrew the recognition) was not a de facto
government (Moore, International Arbitrations, vol. Ill, p. 2873).
85 Moore, Digest, vol. I, s. 22; Moore, International Arbitrations, vol. I, pp.
684, 695, vol. Ill, pp. 2900-1, 2982-7.
*• Oppenheim, vol. I, p. 156; Keith, op. cit., Ch. VIII.
87 Keith, op. cit., pp. 66-72.
88 [1905] 2 K.B. 391, 401.
Belligerents as De Facto Government 327
body may be transmitted to the restored de jure government, it
need hardly be emphasised that the discussions do not apply to
a rebel body which later succeeds in establishing itself as the
de jure government. For in this latter case, the personality
of the rebel body merges, upon its ultimate success, with
that of the State which it comes to represent.89 For the present
purpose, it is therefore only necessary to consider the case of
unsuccessful revolutions.
Among unsuccessful revolutionary governments, a distinction
must be drawn between a 'general de facto government' and
a ' local de facto government '.90 A general de facto government
is one which has displaced the de jure government within the
whole or practically the whole territory, such as, for example,
the governments of Cromwell in England, of Murat in The Two
Sicilies, and of Pierola in Peru (1879-1881). A local de facto
government is one which controls only a portion of the national
territory, such as the Confederate Government in the United States
and the Maximilian Government in Mexico. A general de facta
government may be an unconstitutional or unrecognised govern-
ment, but it is the government of the State.91
With this latter class of de facto governments we are not
immediately concerned, because, as soon as a revolutionary body
has overcome the resistance of the de jure government, it becomes
the only power in the field and instantly loses its character of a
belligerent body. We shall therefore limit ourselves to the dis-
cussion of local de facto governments established by belligerent
bodies.
Though a belligerent government may claim to represent the
State or may aspire to become the representative of the State,
yet, having authority over only a limited area, it cannot do so.
Its acts cannot bind the State as a whole. In the Sambiaggio
Case (1903) it was held by the Italian- Venezuelan Commission
of 1903 that governments are not responsible for acts not under
their control, because :
' 1. Revolutionists are not the agents of government, and a
natural responsibility does not exist.
89 See Williams v. Bruffy (1877), 96 U.S. 176, 186. See also Borchard, op. tit.,
s. 96; Silvanie, Responsibility of States for Acts of Insurgent Governments,
33 A.J.I.L., 1939, pp. 78-90.
,0 See the distinction in Williams v. Bruffy (1877), 96 U.S. 176, 185-6.
11 Borchard, op. tit., pp. 206-7.
328 Recognition of Belligerency and Insurgency
'2. Their acts are committed to destroy the government, and
no one should be held responsible for the acts of an enemy
attempting his life.
' 3. The revolutionists were beyond governmental control, and
the Government cannot be held responsible for injuries
committed by those who have escaped its restraints.' 92
It appears that the reasons quoted above adduce a wrong
argument for a correct conclusion. The revolutionists never
claimed to represent the government; they claimed to represent
the State. A better argument seems to be that, the insurgent
government not being entitled to represent the State as a whole,
the State cannot be held responsible for its acts so long as it has
not itself spared any effort to provide protection to foreigners.93
Such was probably in the minds of the United States and the
Mexican Governments when they concluded the Convention of
July 4, 1868, which stipulated that Mexico was responsible only
for acts of the ' authority of the Mexican Republic '. In the
numerous cases arbitrated under this Convention, it was held
that Mexico was not responsible for the acts of the governments
of Zuloaga, Canales, Miramon and Maximilian because they were
never ' authorities of the Mexican Republic '.91 The same prin-
ciple was applied in the arbitrations between the United States
and Spain.95 In the Baldwin Case (1841),96 however, Mexico was
held responsible for the acts of the revolutionary Central Junta.97
Here the tribunal seemed to have accepted the view that the
92 Ralston, Venezuelan Arbitration of 1903, 1904, p. 680. See similar rulings in
Prats v. U.S. by U.S.-Mexican Claims Commission of 1868 (Moore, Inter-
national Arbitrations, vol. 3, p. 2886); the Hanna Case by British-American
Claims Commission of 1871 {ibid., p. 2982); the Aroa Mines Case by British-
Venezuelan Commission of 1903 (Ralston, op. cit., p. 350 et seq.); the Jarvis
Case by U.S.-Venezuelan Commission of 1903 (ibid., p. 145).
93 See Home Missionary Society Claim (1920), Arbitration under the Agreement
of 1910 between Britain and U.S., 15 A.J.I.L., 1921, p. 294. See also below,
pp. 373-4.
91 McKenny Case (1876) (Moore, International Arbitrations, vol. Ill, p. 2881);
Walsh Case (ibid., p. 2978); Hugh Divine Case (ibid., p. 2980); Schultz Case
(1871) (ibid., p. 2973); Baxter Case (1871) (ibid., p. 2934); Jansen Case (ibid.,
p. 2902); Wyman Case (1876) (ibid., p. 2978); Silva Case (1875) (ibid.,
p. 2979); Pope Case (1851) (ibid., p. 2972).
95 McGrady and Wilson Case (1874) (ibid., p. 2981); Zaldivar Case (1882) (ibid.,
p. 2982).
"Ibid., p. 2859.
97 This has been criticised as recognising the responsibility of States for acts
of local de facto governments. See Borchard, op. cit., p. 211, n. 4; Lapradelle
and Politis, Recueil des Arbitrages Internationales, 1905, vol. 1, pp. 466-7.
Belligerents as De Facto Government 329
Junta was a part of the government which was responsible for
its acts.
Between the years 1923 and 1927 the Government of Mexico
entered into conventions with various powers 9S for the settlement
of claims arising out of the political disturbances in Mexico
between 1810 and 1920.
These conventions, however, did not establish the principle
that the legitimate government is responsible for acts of insur-
gents, because it was expressly provided that the Mexican Gov-
ernment only accepted liability ex gratia, and not according to
the ordinary principles of international law."
The denial of liability by Mexico for acts of the Huerto regime
in fact went further than the non-liability for acts of belligerent
communities, for the Huerta regime, being in control of the capital
and the greater part of the country between February, 1913, and.
July, 1914, and having been recognised de jure by many States,
was really more than a local de facto government, and certainly
not, as the Mexican government urged, no government at all.1
This shows that, even if it be agreed that a State is only liable
for acts of general de facto governments, there still remains the
practical difficulty of distinguishing between a general de facto
government and a local one.
It often happens that a political usurper might, by seizing
control of the capital, assume the appearance of a general de
facto government exercising authority throughout the country.
But as soon as the first shock of surprise is over, rival factions
might arise, and the usurper would either survive the struggle
through the suppression of his rivals, or would be reduced to
one of the several factions contending for supremacy. It would
then be extremely difficult to say at what stage of the struggle
a transition takes place by which the government of the usurper
is changed from a general to a local character. For example, the
"With the United States on September 10, 1923; with France, September 25,
1924; with Germany, March 16, 1925; with Great Britain, November 9, 1926;
with Italy, January 13, 1927; with Spain, November 25, 1925 (Feller, Mexican
Claims Commissions, 1923-34, 1935, Appendices II- VII).
" U.S.-Mexican Convention, Article II (2) and corresponding provisions in other
conventions. In the interpretation of the conventions, Mexico placed further
limitations upon the scope of her liability. These were conceded by the
other Powers. See Feller, op. cit., s. 150.
1 Ibid. Decision No. 1, U.S. Special Mexican Commission, 32 A.J.I.L., 1938,
p. 858; Hopkins Case (1926), Opinions of the Commissioners, 1927, p. 42.
330 Recognition of Belligerency and Insurgency
military government set up by General Zuloaga in Mexico in 1851,
which was recognised by the entire diplomatic corps, had all the
characteristics of a general de facto government. There did not
seem to be any opposition government in existence in Mexico
until the establishment of Juarez's Government at Vera Cruz.
However, in the Cuculla Case,2 the United States-Mexican Mixed
Claims Commission denied that the Zuloaga Government was a
government at all. It is true that the Zuloaga Government did
not continue to be the general de facto government after the rise
of the Juarez government which claimed to be de jure and was
recognised by foreign powers as such, but it could not, neverthe-
less, be denied that the government had at one time been the
general de facto government. It seems that the real question
was in determining the exact point of time at which the transition
from a general de facto government to a local one took place.
The Hopkins Claim (1926) 3 decided by the United States-
Mexican Claims Commission seems to have provided an answer
to this question. It was suggested by the Commission that a
distinction should be drawn between two methods by which the
revolutionary body seizes power. A revolutionary body which
seizes power at the centre becomes a general de facto government
and continues to be such so long as it has 'real control and
paramountcy at the time of the act over a major portion of the
territory and a majority of the people '. On the other hand, the
revolutionary body which strikes from without can only become
a local de facto government until it has finally succeeded in
establishing itself throughout the country.1
The third factor to be considered in the determination of State
responsibility is the nature of the obligation incurred. The
administration of a modern State has opened into an ever-widen-
ing sphere of non-political quasi-commercial public services and
government activities. Such activities of the government are so
bound up with the everyday life of the community that they must
not be interrupted, and are, in fact, generally not interrupted,
even during violent political upheavals. Under these circum-
stances, to rule out the validity of every act of a local de facto
2 Moore, op. cit., vol. Ill, p. 2873.
3 Opinions of
No. 144.
'Ibid., p. 48
Opinions of the Commissioners, 1927, p. 42; Green, op. cit., n. 7, p. 141 above.
No. 144.
Belligerents as De Facto Government 331
government, on the ground that it cannot represent the State,
would appear to be too simple a solution for problems arising
out of a complicated society.
This categorical manner in disposing of the question was
criticised by the United States-Mexican Claims Commission in
the Hopkins Case. It was urged by the Commission that, in
order to determine the validity of acts of local de facto govern-
ments, the character of each transaction must be judged and
determined by the facts of the particular case. Some acts are
' impersonal acts of the government itself as an abstract entity ',
unaffected by the character of the ruler. In the instant case,
the purchase of postal money orders was found to fall within the
category of purely government routine having no connexion with
the individuals administering the government for the time being;
and was binding upon the Mexican State. This decision was
followed by many other money orders cases decided by the same
Commission.5 The principle also applied to ordinary commercial
contracts for the purchase and sale of goods between government
bureaux under the Huerta administration and foreign citizens."
In the Hopkins Case, in which the distinction between ' per-
sonal' and 'impersonal' acts of government was made for the
first time, it appears, ironically, that such a distinction was not
necessary for the decision of the case. Having established the
fact that the Huerta administration was paramount at the time
of the act in question,7 all its acts, whether personal or impersonal,
would have been equally binding upon the State.8 The distinc-
tion itself is, nevertheless, of great value from the doctrinal point
of view. It would enable rights of individuals to be protected
according to their merits, and not to be affected by whatever
storms might arise on the political horizon. It brings the facts
into harmony with legal logic.
Another test for the validity of acts of insurgent governments
was suggested in the Hopkins Case, and has been applied in
other cases. It was suggested that where a State ' receives benefits
from transactions of an unusual nature ', such transactions must
be binding upon the State.9 Bonds issued by Huerta for payment
5 See cases cited in Silvanie, loc. cit., n. 89, p. 327 above, p. 98.
6 Ibid., pp. 98-9.
7 Opinions of the Commissioners, 1927, pp. 43, 48-9.
8 Ibid., p. 48.
• Ibid.
332 Recognition of Belligerency and Insurgency
of interest on a pre-existing debt of Mexico were accepted as
valid by the subsequent Mexican Government while other bonds
were repudiated. This case was cited by the Commission as
evidence of the recognition of the principle by the Mexican
Government.10
A similar conclusion was reached by the British-Mexican
Claims Commission under the convention of 1926 in the case of
the British Shareholders of the Mariposa Company.11 It was
held that Mexico was responsible for cattle taken by the Villista
troops from the claimant company's ranch in order to supply
meat to the population of the town.
From the above discussion, the position seems to be that the
obligations incurred by a local de facto government do not as a
rule devolve upon the State,12 except where the obligation arises
from impersonal acts, or from acts from which the State receives
special benefits.
But upon what grounds does the State accept these obliga-
tions? It cannot be maintained that the local de facto government,
while not representing the State in other matters, can act to bind
the State in these exceptional cases. It seems to the present
writer that the explanation can only be found in the theory of
State succession. Although writers are not agreed as to whether
a successor State should succeed to all the obligations of its
predecessor, they are, however, generally agreed that at least
certain classes of obligations devolve upon the successor." It
may be said that the two exceptional cases mentioned above
should come under these transmissible obligations. The obliga-
tions are not incurred by the restored legitimate government
through its own action, but are taken over from an entity whose
existence has been terminated.
10 Opinions of Commissioners, 1927, p. 46.
11 Silvanie, loc. cit., pp. 101-2 (British-Mexican Claims Commission of 1926,
Decisions and Opinions, 1933, p. 304).
12 Cf. below, p. 373.
13 See Schwarzenberger, op. cit., n. 55, p. 22 above, p. 80 et &°.q.
CHAPTER 21
THE NATURE OF THE RECOGNITION OF
BELLIGERENCY
In our previous discussion with regard to belligerent communities,
we have referred only to those whose right of belligerency is
assumed to have been established. Political uprisings may vary
in the degree of success and stability from a mob riot to a full-
fledged civil war.1 Only when the uprising has attained a certain
degree of development can the revolting community acquire the
dignity of a ' belligerent community ' and be in the position to
exercise certain of the functions normally appertaining to an
independent State. What is this degree of development which
qualifies rebellious individuals to become a belligerent com-
munity? How is it determined? What is the nature of the
recognition of belligerency? Who is entitled to grant recogni-
tion? Under what circumstances may recognition be granted?
Is the grant of recognition a duty or a discretionary right?
Let us first consider the question of the nature of recognition.
The opinions with regard to the nature of the recognition of
belligerency roughly fall into two groups, corresponding to the
constitutive and the declaratory schools in the question of State
recognition. One school conceives of an act of recognition as a
grant or a concession of rights, privileges or legal status; the other
conceives of it merely as a declaration or acknowledgment of the
existence of certain facts. To the former, an insurgent body
enjoys no right and is subject to no duty under international law
until recognised. To the latter, the existence of a civil war is a
fact, from which flow the rights and duties of belligerents and
neutrals. Recognition by the parent State or by a foreign State,
according to this view, adds nothing to these rights and duties,
nor does the refusal to recognise lessen them. It merely indicates
that the parent State or the foreign State concerned acknowledges
the existence of that fact and intends to accept its consequences.
1 For various gradations of civil uprisings, see below, p. 398.
333
334 Recognition of Belligerency and Insurgency
The ' concession theory ' receives the support of numerous
writers on international law.2 The authority in the practice of
nations in support of this view is, however, by way of contrast,
remarkably meagre. An opinion of the British law officers
regarding the Cretan insurrection of 1867 may perhaps be cited
as lending weight to that theory. It was stated that if the
insurgents were to be * treated as a Belligerent de facto ', they
would be entitled to the rights of war.3 The Ambrose Light
(1885),* decided by the District Court of the Southern District of
New York, is perhaps the only judicial authority in full support
of the concession theory. The Ambrose Light, a vessel belonging
to the insurgent party in rebellion against the Government of
Colombia, was captured by an American gunboat in the Carib-
bean Sea. The vessel had instructions to attack Colombian ships
and to engage in a hostile expedition against Cartagena, but no
other depredations were intended. The Court, condemning the
ship, declared : ' International Law has no place for rebellion;
and insurgents have strictly no legal rights, as against other
nations, until recognition of belligerent rights is accorded them '."
The exploit of the ship was denounced as an attack on the rights
of all mankind which should be suppressed at the discretion of
every nation. Without this right of self-defence, it was stated, the
' whole significance and importance of the doctrine of recognition
of belligerency would be gone, since the absence of recognition
could be safely disregarded; the distinction between lawful and
unlawful war would be practically abolished; and the most
unworthy revolt would have the same immunities for acts of
violence on the high seas, without any recognition of belligerent
rights, as the most justifiable revolt would have with it '.'
2 For example: Hall, p. 36; Oppenheim, vol. II, ss. 59, 75, 76; Hyde, vol. I,
s. 47; Fauchille, op. cit., n. 24, p. 15 above, vol. I, Pt. I, s. 200; Hershey, op. cit.,
n. 15, p. 306 above, s. 115-9; Woolsey, op. cit., n. 2, p. 105 above, p. 302;
Lawrence, op. cit., n. 5, p. 14 above, p. 328; Erich, loc. cit., n. 21, p. 15 above,
p. 460; Rougier, op. cit., n. 2, p. 97 above, p. 197.
The concession theory should not be identified with the constitutive theory,
as the former is also held by many writers of the declaratory school. It may
be noted that Professor Lauterpacht, although he regards recognition as con-
stitutive of rights, however, differs from this school by his insistence upon
the duty of recognition. See below, p. 356.
' Opinion of August 14, 1867 (Smith, vol. I, p. 265).
4 (1885) 25 F. 408, Hudson, p. 187.
* Ibid., p. 190.
6 Ibid.
Nature of Recognition of Belligerency 335
The judgment has been subjected to much criticism.7 It is
not believed that today anybody would seriously entertain the
idea that unrecognised insurgents are enemies of mankind or that
a distinction can justly be drawn between ' unworthy ' and
' justifiable ' revolts. The more general view is now to regard
ships of even unrecognised insurgents as non-piratical.8 Then-
right to attack the enemy is derived from the fact of the existence
of open warfare.
The proper stand for a foreign State to take in case of
domestic disturbance within another State can be none other than
that of disinterestedness and non-intervention. It has no right
either to aid or to suppress the rebellion.9 The treatment to be
accorded to insurgents by foreign States should be such as to
correspond with the actual state of the development of the revolu-
tion. If facts are such that an open war is actually in existence,
it would not be right for a foreign State, to use the words of
Westlake, to ' shut its eyes to the fact of there being a real war '
and ' to treat combatants as rioters and pirates \10
This attitude is in consonance with the declaratory doctrine
of the recognition of belligerency. According to that doctrine,
belligerency is a status derived from certain conditions of facts.
The act of recognition by the established government or foreign
States is nothing more than a declaration on their part that such
facts have been known to them and that they intend to accept the
rights and duties which may arise in consequence of such a state
of facts. In the absence of an international organ to pronounce
upon the existence of such a state of facts, the judgment must
necessarily be left to the individual States. But a foreign State,
once admitting that the fact of war exists, would no longer be
' See criticism of Wharton, on the ground of non-intervention (Insurgents as
Belligerents, 33 Albany L.J., 1886, p. 125, partially reprinted in Moore,
Digest, vol. II, pp. 1104-5); Dickinson, loc. cit., n. 20, p. 138 above, p. 120.
8 Below, p. 402 et seq.
9 See Article 2 of the Resolution of the Institute of International Law, 1900,
on ' Rights and Duties of Foreign Powers as Regards the Established and
Recognised Governments in Case of Insurrection ', which provides for the
duty of non-intervention (Scott, Resolutions of the Institute of International
Law, 1916, p. 157). See also, Article 2 of the Convention of Havana, February
20, 1928, regarding 'Rights and Duties of States in Case of Civil Strife',
which provides that foreign States are not bound by the declaration of piracy
issued by the established government (Hudson, International Legislation, vol.
4, p. 2416).
10 Westlake, op. cit., vol. I, p. 53.
336 Recognition of Belligerency and Insurgency
free to decide for itself whether to accept or to refuse the duties
of neutrality.11 Mr. Eden, British Foreign Secretary, admitted in
the House of Commons on April 13, 1938, that had it not been for
the presence of very exceptional circumstances in the Spanish
Civil War, ' every precedent would be in favour of granting
belligerent rights as was done in the American Civil War '.ia
This kind of admission would not have been possible if the
British Government had acted entirely upon the concession
theory, because under that theory the contesting parties would
have no right against Great Britain unless and until she had
granted to them such rights.
The declaratory theory of recognition is a corollary of the
right of rebellion, which, in terms of international law, is the right
of every nation to choose its own form of government.13 Grotius
admits that such a right of rebellion should be allowed in case
of extreme and unavoidable necessity." Christian Wolff goes
further and maintains that by nature the right of war belongs to
every man against one who does not wish to allow him his perfect
right.15 ' When the nation is divided into two absolutely indepen-
dent parties, who acknowledge no common superior \ writes
Vattel, ' the State is broken up and the war between the two
parties falls, in all respects, into the class of a public war between
two different nations.' 16 Likewise, Bluntschli argues that a
belligerent community is in a measure a State, and should be
accorded the quality of a belligerent.17 Dana, in formulating the
conditions for recognition, says : ' It is certain that the state of
things between the parent state and insurgents must amount, in
fact, to a war, in the sense of international law, that is, powers and
rights of war must be in actual exercise.' 18 Obviously he does
not think that any act of recognition is required to put the war in
an international law plane. Rather, the recognition can only take
place, after the belligerent status has been asserted by the parties.
11 Lauterpacht, p. 186.
12 Pari. Deb., H.C., 5th ser., vol. 325, col. 1608. See similar pronouncements
by the British Government on various occasions, Lauterpacht, p. 252, n. 2.
13 See Lauterpacht, pp. 229-30, 233.
11 Grotius, Bk. 1, Ch. IV, XX.
15 Wolff, Jus Gentium, 1764, ss. 613, 1010-2.
10 Vattel, op. cit., n. 10, p. 14 above, Bk. Ill, ch. 18, § 295.
17 Bluntschli, op. cit., n. 10, p. 14 above, s. 512, n. 1.
18 Dana's Wheaton, s. 23, n. 15. But see ibid., for his view regarding the
necessity of recognition.
Nature of Recognition of Belligerency 337
The same view is held by Calvo, who says that ' the existence of
the civil war confers belligerent rights on the parties '."
It is pointed out by W. L. Walker, that, in all the works he
could find written prior to 1865, nowhere was the term
* recognition of belligerency ' mentioned and that there was no
indication in the opinions of writers or statesmen in the
early half of the nineteenth century that any decided line of
distinction could be drawn between recognised and unrecognised
belligerents.20
There was no formal recognition of belligerency during the
American War of Independence. The attitude of the European
Powers varied from the prompt acknowledgment of independence
(such as that by France and Spain) to the release of American
prizes by Denmark.21 In no case, however, was there any evidence
that the governments concerned had acted in accordance with the
doctrine that the revolting colonies had no rights until recognised.
In the controversy with Denmark, the United States held the
view that, in the event of a civil war in a State, foreign States
should, ' while remaining passive, allowing (allow) to both the
contending parties all the rights which public war gives to
independent sovereigns \22
The revolt of the Spanish Colonies in America also bore out
Mr. Walker's conclusion. Rights of belligerency were gradually
exercised by the insurgents and acquiesced in by foreign States,
in particular, Great Britain and the United States, accord-
ing to the actual development of the war, without creating
a status by one single action. The problem of the legal capacity
of insurgents was at that time argued more on the ground of the
recognition of independence rather than on that of belligerent
recognition. The British policy was at first handicapped by the
Treaty of 1814 with Spain,23 in which she pledged herself to
prevent arms and ammunition from reaching Spanish provinces
in America. But gradually, in the course of the conflict, she
allowed more and more scope to the belligerent activities of the
" Calvo, Le Droit International, Theorique et Pratique, 1896, vol. 4, p. 25. See
also P. A. Landon, letter to The Times, August 30, 1937.
20 Walker, loc. cit., n. 19, p. 312 above, pp. 178-9.
21 Moore, Digest, vol. I, pp. 168-9. See also Bergen Prizes (1779), n. 98, p. 54
above.
22 Cited in O'Rourke, Recognition of Belligerency and the Spanish War, 31
A.J.I.L., 1937, p. 398, at p. 405.
" 1 (ii) B.F.S.P., 1812-4, p. 292.
22
338 Recognition of Belligerency and Insurgency
insurgents. In February, 1817, Sir C. Robinson recommended a
distinction between insurgent ships and pirates and the sub-
mission to the jurisdiction of insurgent courts as regards British
interests on board Spanish ships.21
In January, 1815, British naval officers were instructed to
assume a neutral attitude, to refrain from hostilities with insurgent
cruisers, and to respect ' local regulations " in insurgent ports.
At the same time, however, British ships were told to protect
lawful trade and the property of British subjects.25 In 1819 the
Foreign Enlistment Act was passed.28 In July, 1819, the British
Government decided to place Spain upon the same footing with
her colonies in matters of the export of munitions from Great
Britain. A year later, Robinson advised that insurgents ought
to be allowed to institute blockades.27 On September 14, 1822,
writing with reference to the condemnation of ships by Peruvian
authorities, he declared : ' Considering the principles of neutrality
that have been professed on the part of this country, the asserted
independent governments would have a right to exercise the
ordinary privileges of war in maritime capture.' " At that time
the British Government had not even informally recognised the
belligerency of the South American Colonies.2' It seems that the
insurgents could be allowed to exercise the right of maritime
capture, even without recognition. If that much right were
allowed, it is difficult to see what else an act of recognition can
add to the legal capacity of an insurgent body.
The practice of the United States during this period proceeded
along a similar line. Reviewing the policy of this period,
President Monroe came to the following conclusion :
' Through every stage of the conflict the United States has
maintained an impartial neutrality, giving aid to neither of the
parties in men, money, ships or munitions of war. They have
regarded the contest not in the light of an ordinary insurrection
24 Smith, vol. I, p. 270.
2B Ibid., pp. 268-70.
28 59 Geo. Ill, c. 69.
27 Opinion of October 20, 1820, Smith, vol. I, p. 278.
28 Ibid., p. 279.
21 British recognition was granted on February 21, 1823, by allowing free export
of munitions to both parties (ibid., p. 279). See, for the view that there was
no single act of recognition, Lauterpacht, p. 180, n. 1.
Nature of Recognition of Belligerency 339
or rebellion but as a civil war between parties nearly equal, having
as to neutral powers equal rights.' 3°
The American proclamation of neutrality was issued at a com-
paratively early stage of the contest (on September 1, 1815)."
Consequently, it makes it more difficult to discover what attitude
the United States had adopted towards the insurgents prior to
that act. It is, however, known that there was a presumption in
favour of the non-piratical character of insurgent ships, which
were allowed to enter American ports, and there was no
prohibition against normal trade with insurgent countries,
although military expeditions were disallowed.32
In his message of March 8, 1822, President Monroe made a
further statement on the principles underlying the American
policy. He said :
'As soon as the (revolutionary) movement assumed such a
steady and consistent form as to make the success of the provinces
probable, the rights to which they were entitled by the law of
nations, as equal parties to a civil war, were extended to them.
. . . Through the whole of this contest the United States have
remained neutral, and have fulfilled with the utmost impartiality
all the obligations incident to that character.' 33
It is obvious from this statement that the rights of the
insurgents as equal parties to a civil war were regarded as rights
to which they were entitled through the operation of the law of
nations and not through the creation by or concession of other
States. Such is the view of the United States Supreme Court
in The Santissima Trinidad (1822), in which it was held ' that the
existence of this civil war (between Spain and her Colonies) gave
to both parties all.the rights of war against each other '.3i
The practice of nations was again put to the test during the
Greek rebellion which began in April, 1821. No formal recogni-
tion of belligerency was made by the British Government until
the proclamation of neutrality on June 6, 1823.35 Yet from an
early stage of the conflict Great Britain had assumed a position
30 Message to Congress, December 2, 1817 (Moore, Digest, vol. I, p. 173).
31 Ibid., p. 171. See divergencies in the date of the American recognition,
Lauterpacht, p. 182, n. 1.
12 Moore, Digest, vol. J, pp. 170-1.
»3 Ibid., do. 174-5.
"(1822) 7 Wheat. 283, 306.
" Professor Lauterpacht thinks that the recognition did not take place until the
end of 1824 (p. 178).
340 Recognition of Belligerency and Insurgency
not unlike that of a neutral. In September, 1821, an application
for permission to arm and equip a Turkish frigate was refused
on the ground that ' it would not be consistent with the Duties
of Neutrality \36 In an opinion of October 4, 1821, Robinson
advised that interposition against the insurgents' ships should be
' by all amicable means \37 On January 27, 1823, the British
merchants were informed that they must not expect the protection
of the navy in forcing the blockade instituted by the rebels.38
It may be argued that the neutral attitude of Great Britain,
instead of originating from the belief that the Greek insurgents
were entitled to belligerent rights independently of recognition,
was the consequence of a proclamation of neutrality on June 7,
1821, by the Ionian Senate, which should be regarded as con-
stituting a qualified recognition of belligerency by Great Britain.3'
This argument was definitely disproved by a despatch of Mr.
Canning, in which he declared :
' The Proclamation of the Ionian Government ... is not
any new declaration of neutrality on our part. We have openly
and uniformly, from the time when the Greek struggle assumed
the shape of a regular contest on the sea, professed an impartial
neutrality between the two belligerent parties, having allowed to
each the free exercise of belligerent rights, such as the Law of
Nations warrants. . . .' "
He severely criticised Metternich's doctrine that ' the Greeks, as
rebels, are not entitled to the same rights of war, as legitimate
belligerents ', saying that it is not possible to expect the insurgents
to discharge the duties of civilised warfare without according
them corresponding rights."
The foregoing account of British practice clearly shows that,
even without any overt act, such as the proclamation of June 6,
1823, or the Ionian proclamation of June 7, 1821, the British
Government had accepted the fact of the war and the obligations
of a neutral. Such an attitude is in strict agreement with the
declaratory theory. It was no wonder that Dr. Lushington, think-
86 Smith, vol. I, pp. 283-4.
" Ibid., p. 284.
"Ibid., pp. 286-7.
"' Ibid., p. 282.
"Canning to Wellesley, December 31, 1824 {ibid., p. 295) (italics added)
" Ibid., p. 296.
Nature of Recognition of Belligerency 341
ing in terms of the concession theory, should find it difficult to
explain why the British Government should have taken upon
itself the obligation of neutrality with regard to such unrecognised
insurgents who had ' legally ' no right to establish blockades."
The British practice outlined above seems to have been
followed with consistency during later civil wars. Jenner (King's
Advocate) advised the acknowledgment of the blockade instituted
by the Miguelists in Spain in 1828." In 1848 Great Britain
recognised the blockade of Trieste by Sardinia and Venice, which
were in revolt against Austria.41 In 1891, while not recognising
the belligerency of Chilean insurgents, the British Government,
nevertheless, allowed them to exercise certain rights of war,
including the institution of a blockade.45 Numerous other instances
in which the belligerent right of blockade of the insurgents were
admitted by the British Government, are mentioned in Professor
Lauterpacht's Recognition in International Law." Only on the
occasion of the revolt of St. Domingo against Spain in 1864
did the British Government, to the despair of the Law Officers,
persist in ignoring the existence of the state of war. The correct
view was urged by the Law Officers in their Opinion of August
22, 1864, which declared that the existence of war is a question
of fact, as well as law. They argued :
' If the facts are such, as really to constitute a state of war
between the contending parties, according to the law of nations,
it is not, we think, competent, by law, to any neutral power, to
withdraw its ships and subjects upon the high seas, from the
operation of the ordinary laws incident to that state of things,
merely by declining to acknowledge its existence.' "
In the United States, too, we find the same line of conduct
pursued with equal consistency. Hospitality was extended to
vessels of Texan insurgents against Mexico in 1836.48 In 1845 a
naval officer was punished for failure to respect the belligerent
rights of General Oribe, who was engaged in a civil war in the
" Opinion of May 29, 1823 (ibid., pp. 291-3).
" Opinion of August 13, 1828 (ibid., p. 299), which was a reversal of a view
held two months before (Opinion of June 10, ibid., p. 298).
" Ibid., p. 300.
4S Moore, Digest, vol. 2, pp. 1107-12.
" Lauterpacht, p. 180.
" Smith, vol. I, p. 314. The advice was not acted upon (ibid., p. 320).
48 Moore, Digest, vol. I, pp. 176-7.
342 Recognition of Belligerency and Insurgency
Oriental Republic of Uruguay.4' In a communication 50 to the
Peruvian Minister with reference to the Vivanco insurrection in
Peru, Secretary Cass maintained in 1858 that the factual circum-
stances of the contest made that contest a civil war. He did not
think that any public act or proclamation was necessary before
the consequences of civil war might follow. In a despatch to Mr.
Clay in Peru he rejected the argument put forward by the Peruvian
Minister, that a civil war in one country cannot be known to the
people of another save through their own government; that the
existence or non-existence of civil war is a question, not of fact,
but of law, which no private person has the right to decide for
himself; that foreigners must regard the former state of things as
still existing, unless their respective governments have recognised
the change. In pointing out the absurdity of this contention, he
argued that the existence of a state of civil war can and must
be judged by the individual upon the evidence of his own senses.
It would be folly for him to ignore the actualities of fact while
waiting for the solution of a legal problem at home.51
A departure from this general principle occurred during an
insurrection in Mexico, 1860. The United States decided not to
respect any blockade instituted by the Miramon faction.52
The American Civil War has often been spoken of as the
period in which the law of belligerent recognition attained its
maturity.53 The controversy between the United States and Great
Britain was responsible, more than anything else, for bringing the
question of recognition of belligerency to such prominence.
Oddly enough, however, the point under discussion here — whether
the existence of a civil war is a matter of fact or the result of
recognition — did not seem to be a matter of disagreement between
the contending parties. Both sides were agreed that recognition
49 Moore, Digest, vol. I, pp. 178-82.
50 See below, p. 383.
51 Cass to Clay, November 26, 1858 (Moore, Digest, vol. I, p. 184. [See, in this
connexion, the case of David Colden (1862), in which the Claims Commission
between Costa Rica and the United States of America pointed out that
' whatever may have been the language adopted by Costa Rica in regard
to Nicaragua, Rivas-Walker and the filibusters, the fact, which is more
eloquent, than words, shows that it was a public war . . . ' (Moore, International
Arbitrations, vol. 2, p. 1560, at p. 1561).]
82 Cass to Toucey, March 10, 1860 {ibid.). An American warship actually
captured ships co-operating with the insurgents in Mexican waters (McLane
to Cass, March 30, 1860, Manning, Diplomatic Correspondence of the United
States, Inter-American Affairs, 1831-1860, vol. 9, 1937, p. 1170).
58 See LauterDacht, t>. 184.
Nature of Recognition of Belligerency 343
is recognition of a fact. The question in dispute was one of the
correct appreciation of the fact and the correct timing of the
recognition, rather than the nature of the recognition.54 In taking
this position, it was necessary that both governments should
accept the proposition that the rights of war and neutrality are
derived from the existence of the war, and not from the action
of any State. The following words of Lord Russell and Secre-
tary Fish no doubt express this point of view. In a letter to
Lord Lyons Lord Russell wrote : ' Her Majesty's Government
affirm, as the United States affirmed in the case of the South
American provinces, that the existence of this civil war gives to
both parties the rights of war against each other.' 55 Likewise,
Secretary of State Fish declared : ' . . . national belligerency,
indeed, like national independence, being but an existing fact,
officially recognised as such, without which such a declaration is
only the indirect manifestation of a particular line of policy.' 58
More than once, the United States Supreme Court had
occasion to declare its view that civil war is a fact, requiring no
recognition. In The Prize Cases (1862) it declared :
' A civil war is never solemnly declared; it becomes such by
its accidents — the number, power, and organisation of the persons
who originate and carry it on. When the party in rebellion occupy
and hold in a hostile manner a certain portion of territory; have
declared their independence; have cast off their allegiance; have
organised armies; have commenced hostilities against their former
sovereign, the world acknowledges them as belligerents, and the
contest a war.' "
As to the function of recognition, the Court declared itself in
favour of the declaratory view, saying :
' What recognition does is not to operate as a grant of rights
si See Phillimore, op. cit., n. 21, p. 15 above, vol. 2, pp. 24, 26. The main point of
disagreement was whether the fact of civil war did exist at the time of British
recognition. Adams argued that the fact of civil war does not include
' appearances or presumptions ', while Lord Russell argued that such ' facts '
should include the antecedent history, and the certainty of the magnitude of
the war. See Dana's Wheaton, s. 23, n. 15. Seward even went so far as to
argue that there was no war until the rebels succeeded in establishing their
independence. The inadmissibility of this argument is pointed out by Bernard,
who says that, in this sense, there could never be a ' civil ' war {op. cit., n. 12,
p. 107 above, pp. 160-1). See also below, p. 376.
"Letter of July 19, 1861 (51 B.F.S.P., 1860-1861, p. 206).
56 Fish to Motley, September 25, 1869 (Moore, Digest, vol. I, p. 193).
57 2 Black 635, at p. 666-7.
344 Recognition of Belligerency and Insurgency
of war, but create at the most a species of estoppel. The neutral
State estops itself from denying that a true war exists.' "
The view was reiterated in other civil war cases.5' The argu-
ment was even more strongly put by Commissioner Wadsworth
who delivered the opinion of the United States-Mexican Mixed
Claims Commission in the case of Prats v. United States."
Prats, a citizen of Mexico, claimed damages for the burning of
some bales of cotton by the Confederate forces. Neither the
United States nor Mexico had ever recognised the belligerency
of the Confederate States. The award is an excellent exposition
of the declaratory theory and is worth quoting at length :
'Non-responsibility on the part of the United States for
injuries by the Confederate enemy within the territories of that
government to aliens did not result from the recognition of the
belligerency of the rebel enemy by the strangers' sovereign. It
resulted from the fact of belligerency itself, and whether recognised
or not by other governments. But the proclaimed recognition of
the fact by a government is conclusive evidence of the fact, and,
so to speak, an estoppel as to that government. This, probably,
is all Mr. Adams meant in his dispatch to Mr. Seward (quoted in
an argument, June 11, 1861, Diplomatic Correspondence, 105).
If responsibility on the part of the United States in the absence
of such recognition is intimated, we do not concur with that distin-
guished minister, for had Great Britain never recognised the
Confederates as belligerents at all, the consequences of the state
of war as a fact to Great Britain, as to all other neutral powers,
would have been the same; such as the liability of their vessels
on the high seas to search and seizure as prize by the armed
cruisers of the United States, and to capture for attempts to
violate the blockade. These rights the United States exercised
against Mexico and all other nations, and did it in virtue of the
fact of war, and not because of the recognition of the belligerency
of the insurgents by those powers or any of them. Mexico con-
ceded to the United States the exercise of these rights of war
against her, and is equally estopped now with other nations to
68 At p. 665. See also Schwarzenberger, op. tit., n. 55, p. 22 above, p. 62.
6» Williams v. Bruffy (1877), 96 U.S. 176, 189; U.S. v. Pacific Railroad (1887),
120 U.S. 227, 233. In some other cases, however, the belligerent rights were
held to be conceded for humanitarian reasons, for instance, Thorington v.
Smith (1868), 8 Wall. 1; Ford v. Surget (1878), 97 U.S. 594.
60 Decided under the U.S.-Mexican Convention of July 4, 1868 (Moore, Inter-
national Arbitrations, vol. 3, pp. 2886-2900).
Nature of Recognition of Belligerency 345
deny the fact or to ignore the changes which the war introduced
into the relations between the two governments.' ei
This case is comparable to the Tinoco Concessions Arbitration
(1923) between Great Britain. and Costa Rica62 with regard to
the recognition of governments, in which the same underlying
principles were upheld. In both cases it was held that the mere
failure to recognise a state of facts which actually existed does not
preclude a State from claiming rights arising out of that state of
facts. In the Prats Case, even if the United States had denied
the existence of the civil war (which the tribunal found that she
had not) she would not have been estopped from claiming the
non-responsibility to which a condition of civil war entitled her.
On the other hand, it was irrelevant whether Mexico had recog-
nised the belligerency of the insurgents or whether she had
conceded the exercise of belligerent rights to the United States
in absence of that recognition; so long as the civil war existed
as a fact, she was not entitled to hold the United States responsible
for the acts of the insurgents.
The theory that the rights of a belligerent community are
derived, not from recognition, but from the fact of war again
received strong affirmation from the United States-Mexican
Claims Commission in the case of the Oriental Navigation
Company (1928)." Mexico sought to enforce a decree closing
an insurgent port, and defended her action on the ground, inter
alia, that the insurgents had not been recognised by any foreign
power. The Commission rejected this argument, holding that ' in
time of civil war when the control of a port has passed into the
hands of insurgents, it is held, nearly unanimously by a long series
of authorities, that international law will apply and that neutral
trade is protected by rules similar to those obtaining in case of
war '." The American Commissioner emphatically declared :
' I do not think there is any distinction in international law
and practice, or in logic, between a port held by insurgents whose
belligerency has been recognised by some affirmative act and a
61 Moore, International Arbitrations, vol. 3, pp. 2888-9. See also Underhill v.
Hernandez (1897), 168 U.S. 250, 255, quoted below, p. 393.
62 1 Reports of International Arbitral Awards, p. 369.
" Opinions of Commissioners, 1929, p. 23; 23 A.J.I.L., 1929, p. 434; De Beus,
Jurisprudence of the General Claims Commission, 1938, pp. 281-94.
" Opinions of Commissioners, 1929, p. 24; 23 A.J.I.L., 1929, p. 435; De Beus,
op. cit., pp. 282-3.
346 Recognition of Belligerency and Insurgency
port occupied by insurgents to whom that status has not been
accorded in that manner.' 65
It is strictly true that in the American practice there have been
numerous cases in which recognition of belligerency was refused.
But these do not necessarily demonstrate the prevalence of the
contrary practice. In some cases, the refusal was justifiable,
as in the case of the Cuban rebellion of 1868-1878, where the
insurgents possessed no civil government.66 In some other cases,
the facts were not very clear whether recognition was accorded or
refused.67 In still other cases, the ground for non-recognition was
entirely unsupportable.68 In most cases of non-recognition, the
action of the Government created confusion in the legal situa-
tion.69 These cases merely demonstrate the soundness of the
dominant practice and the unfortunate consequences of any
departure from it.70
The Spanish Civil War, 1936-1939, is indubitably the most
disputed case of belligerent recognition since the American Civil
War. It contained certain features of anomaly deserving special
attention. The events were briefly as follows.71 The revolt broke
out in the middle of July, 1936, and rapidly spread over large
areas of the country. On August 8, 1936, the Tangier Com-
mittee, which was composed of the principal foreign consuls,
decided that warships of both parties should be excluded from
the harbour. It decided further that passports bearing visas of
65 Opinions of Commissioners, 1929, p. 43; De Beus, op. cit., p. 284.
"See President Grant's Messages of December 6, 1869, June 13, 1870, and
December 7, 1875 (Moore, Digest, vol. I, pp. 193-7).
67 See The Ambrose Light (1882) and The Conserva (1889), above, p. 233.
68 For instance, one of the reasons for the non-recognition of the Cuban rebellion
in 1895-1898 was the inconveniences of neutral duties. See President McKinley's
Message of December 6, 1897 (Moore, Digest, vol. I, pp. 198-200).
09 During the Brazilian naval revolt of 1893, foreign Powers insisted upon naval
protection of their rights in Brazilian territorial waters, and threatened to treat
as piratical the seizure of contraband articles within such waters {ibid., pp.
202-4). On the other hand, the United States were prepared to accept the
validity of the insurgent blockade, if effective (ibid., p. 204). During the
Mexican political disturbances in the early part of this century, the United
States, while regarding the insurgents as outlaws (Hackworth, vol. I, p. 325),
nevertheless requested the Mexican Government to treat captured American
citizens fighting with the rebels according to the laws of war (ibid., p. 324).
70 A departure from this practice took place during the Brazilian revolution of
1930. Within a few days of the proclamation of an embargo on arms against
the rebels by the United States, the revolution was brought to a successful
conclusion. See criticism in Jessup, loc. cit., n. 1, p. 307 above, p. 267.
71 For an account of the events generally, see Survey of International Affairs,
1937, vol. 2; Padelford, International Law and Diplomacy in the Spanish Civil
Strife, 1939, passim.
Nature of Recognition of Belligerency 347
the insurgent government should be recognised as valid." On
August 9 and 10 the Spanish (Republican) Government pro-
claimed a blockade of insurgent coasts. The British and
American Governments raised no objection in principle, provided
that it could be made effective.73 In the same month, Great
Britain interned a Republican seaplane which could not leave
Gibraltar within twenty-four hours.71 When the British Govern-
ment was informed by the insurgents on November 17 of their
intention to bombard the city of Barcelona, it merely demanded
that a neutral safety zone be provided for the safe anchorage of
foreign vessels.75 On December 3, 1936, a Merchant Shipping
(Carriage of Munitions to Spain) Act was passed by the British
Parliament, placing an embargo upon carriage of arms to Spain.76
On December 4 the British and French Governments suggested
bringing about an armistice between the parties.77 A Non-
intervention Agreement 7S was reached between twenty-seven
European States, the purpose of which was to ban the export of
war materials and the departure of volunteers 79 to Spain. In
January, 1937, the British Government proclaimed the enforce-
ment of the Foreign Enlistment Act of 1870,80 and a joint
resolution was passed by the United States Congress imposing
an embargo on the export of war materials to Spain.81
72 These decisions were regarded by Professor Smith as amounting to a declaration
of neutrality (Joe. cit., n. 4, p. 308 above, p. 26).
73 See Instructions of the State Department to the United States charge d'affaires,
quoted in Garner, Questions of International Law in the Spanish Civil War,
31 A.J.I.L., 1937, p. 66, at p. 72. In Robson v. Sykes (1938), 54 T.L.R. 727,
it was held that a voyage to the insurgent naval base of Seville was not an
ordinary commercial voyage, and the refusal to proceed thither was not a
breach of contract. [Cx. Anglo-American attitude during the Chinese civil
war in 1949, see pp. 386-7 below.]
'"'New Statesman and Nation, August 15, 1936, vol. 12, No. 286, p. 218.
75 Garner, loc. cit., p. 71.
76 1 Edw. 8 & 1 Geo. 6, ch. 1.
77 An armistice implies equal belligerency. See O'Neill v. Central Leather Co.
(1915), 87 N.J. Law 552; 94 Atl. 789; also Moore, Digest, vol. I, p. 194.
78 There was actually no single document embodying the Agreement. It was
merely a declaration of a concerted policy by those States, following the
lead given by the Anglo-French Exchange of Notes of August 15, 1936. A
Non-Intervention Committee met on September 9, 1936. See Padelford, The
International Non-intervention Agreement and the Spanish Civil War, 31
A.J.I.L., 1937, p. 578.
79 The ban on volunteers was included on February 16, 1937 (O'Rourke, loc. cit.,
n. 22, above, p. 410).
80 33 & 34 Vict. c. 90.
81 Hackworth, vol. I, pp. 636-8. For the significance of these actions, see below,
pp. 389-90.
348 Recognition of Belligerency and Insurgency
What does this series of events signify? Even if any one of
these acts taken in isolation may not be sufficient to establish the
existence of war, the impact of a series of considered and con-
sistent actions cannot be regarded as without meaning. It has
been argued by Professor Padelford that such acts did not imply
a recognition of belligerency, for to establish such an implication,
an act must be such ' as to leave no doubt but (? that) they have
accepted the exercise of belligerent rights by the struggling
parties \82 The events recounted above seem to have clearly
shown that the fact of war was not ignored by the foreign States.
If the right of the parties to institute a blockade had been admitted
by a foreign State, it would have been difficult to argue that that
foreign State had not accepted the exercise of belligerent rights.
Perhaps it is true that not the exercise of all belligerent rights had
been admitted. But assuming the existence of war, such a denial
would be unlawful.83 It may not have been the intention of a
foreign State to recognise the belligerency by means of certain
particular acts. But unless we are to deny that recognition can be
implied,81 we must deduce the intention from the character of the
act, and not vice versa. There may often be examples of acts pro-
ducing results that are least expected. The proclamation of the
blockade of the Confederate coasts by President Lincoln is a
historic example. There could be nothing further from his inten-
tion than the recognition of the belligerency of the Confederacy.
Yet that action, by its nature, independently of the intention of
its actor, led to certain consequences,85 from which the actor was
no longer free to retract.
Much discussion has centred round the nature of the Non-
intervention Agreement. Was it a collective declaration of
neutrality? or a collective refusal to grant recognition? Sir
Arnold McNair is in favour of the latter view. The adoption of
the non-intervention policy, he argues, means merely that the
States ' decided to carry out their normal international duty of
not interfering in the domestic affairs of Spain and decided not to
"Padelford, International Law and the Spanish Civil War, 31 A.J.I.L., 1937,
p. 226, at p. 236.
83 See pp. 335-6 above.
84 See discussions on implied recognition, below, p. 384 et seq.
8S ' The proclamation of blockade is itself official and conclusive evidence to
the court that a state of war existed . . .' (The Prize Cases (1862), 2 Black
635, 670).
Nature of Recognition of Belligerency 349
exercise their international right (when it arose) of granting
recognition to the rebel government V But is belligerent
recognition an unfettered right of foreign States? If there is no
war, recognition of belligerency would no doubt be illegal. If a
state of war exists, recognition of belligerency would be a legal
duty.87 Assuming that the situation in Spain was peace and not
war, was the action of foreign States in forbidding the export of
arms to the legitimate government consistent with international
law? Professor Lauterpacht argues that there is no rule of general
international law entitling the lawful government to unrestricted
freedom in buying munitions.88 The contrary view was held by
a number of States during the Spanish War.85 In support of his
view, Professor Lauterpacht maintains that if foreign States
should continue to supply the lawful government with arms while
denying them to the insurgents it would amount to an intervention
in the struggle, and interference with national independence.90
It is believed that such an argument can be maintained
only upon the assumption that the insurrection has reached
such proportions as in fact to constitute a civil war, which
necessitates equality of treatment to both contesting parties. The
fact that a foreign State adopts an attitude of impartiality and
non-interference must be considered as evidence of its admission
that a civil war exists. For this reason, whatever the right of
foreign States to prevent the export of arms to a lawful govern-
ment, their decision to treat that government on an equal footing
with the insurgents must be an acknowledgment of the fact that
the situation in the country concerned is one of war between
equal belligerents. The adoption of the non-intervention policy is
evidence of, and is justified by, the existence of a civil war. The
irregularity in the Spanish case is that, while the fact of civil war
was not denied, the foreign States by insisting upon non-recogni-
tion, refused to allow the exercise of full belligerent rights by the
parties, to which the existence of the war entitled them. The
86 McNair, Law Relating to the Civil War in Spain, 53 L.Q.R., 1937, p. 471, at
p. 490.
87 See below, p. 352 et seq.
88 Lauterpacht, p. 232, note.
89 See reservations in the Turkish and Yugoslav notes in response to the non-
intervention policy (Padelford, loc. cit., n. 78, above, p. 581); speeches of
the Soviet, Portuguese and Spanish delegates in the League Assembly,
September, 1936 (ibid., p. 584).
90 Lauterpacht, p. 234.
350 Recognition of Belligerency and Insurgency
incident shows that the foreign States had failed in their obliga-
tions toward the belligerents, and not that, without the sanction
of foreign States, the parties had no right to fight a legal war.
The above discussions lead clearly to the conclusion that like
the recognition of States and governments, the recognition of
belligerency is the acknowledgment of a certain state of fact —
the existence of war. It is this fact, which creates a condition for
belligerent rights and duties.91 Like the case of the recognition
of States and governments, an official recognition of belligerency
has the effect of evidence and estoppel, and is an expression of
the intention of the recognising State to bring its future conduct
into line with the requirements of law in consequence of that fact
[or, as it is put by Dr. Schwarzenberger, ' the recognition of
belligerency by either the parent State or third States creates the
necessary degree of certainty by the temporary and provisional
admission that, so long as the insurgents maintain their de facto
State organisation and accept the international obligations
incumbent upon subjects of international law, they are to be
treated as if they had international personality ' "] .
Recognition, either express or implied, does not create
rights or duties. It has been shown above how such rights have
been exercised and such duties fulfilled by parties in a civil strife
without any form of recognition. Under normal circumstances
foreign States usually make known their recognition of the
situation and cause their conduct to conform with the exigencies
of fact. By so doing, they may have given the appearance that
the rights and duties which occurred are the result of their
individual actions. Such an inference is apparent, but not real.
It may perhaps be objected that there have been instances
where a foreign State, by its recognition of belligerency, in fact
allows belligerent rights to be exercised against it, although there
is objectively no civil war. Conversely, there are also cases where
a foreign State refuses to allow belligerent rights to be exercised
against it on the ground of non-recognition, although a civil war
does in fact exist. The former situation is simply a question of
estoppel. The foreign State, having willingly allowed itself to
be subject to certain obligations, would no longer be free sub-
91 See P. A. Landon— Letter to The Times, August 30, 1937.
92 [Schwarzenberger, op. cit., n. 57, p. 22 above, p. 366.]
Nature of Recognition of Belligerency 351
sequently to deny the consequences. The second situation raises
the more difficult problem of the juridical structure of the inter-
national society. With the state of international society and
international law as it is,93 States are still, on the whole, left to
judge each its own cause, and, whatever their duties under inter-
national law, there is nothing to constrain them from disregarding
them. When a State refuses to fulfil a duty in international law,
it is less often due to the lack of clarity in the law, than to the
defect in the machinery for enforcing it.
" See, for example, Schwarzenberger, ' International Law and Society ', 1 Year
Book of World Affairs, 1947, p. 159, and Corbett, 'Law and Society in the
Relations of States ', 4 ibid., 1950, p. 23.
CHAPTER 22
THE DUTY OF RECOGNITION
As the recognition of belligerency is declaratory in character, and
the recognition or non-recognition does not affect the rights and
duties of the parties which can only be brought about by the
condition of fact, it would seem to follow that recognition must be
discretionary. To the same question concerning the recognition
of States 1 we have answered that, while the act of recognition
may be discretionary, there is a legal duty to treat the new entity
according to international law. Although in principle the argu-
ment can also be applied here, this distinction between the act of
recognition and the treatment according to law is not so clear in
the case of belligerent recognition. For in this case, to accord
treatment to an insurgent body as a belligerent would in itself be
an act of recognition.3 This identity between treatment as
belligerents and the act of recognition argues particularly strongly
in favour of the obligatory character of belligerent recognition.
For those who regard recognition of belligerency as a con-
cession of rights, it is natural to deny the duty of recognition.
Thus Hall, the strongest exponent of this view, writes :
' As a belligerent community is not itself a legal person, a
society claiming only to be belligerent, and not to have perma-
nently established its independence, can have no rights under that
law. It cannot, therefore, demand to be recognised upon legal
grounds, and recognition, when it takes place, either on the part
of a foreign government, or of that against which the revolt is
directed, is from the legal point of view a concession of pure
grace.' 3
It is indeed a logically unassailable argument that a body having
no personality in law, cannot demand the right of recognition.
But to say that a belligerent body is not a legal person would be
pushing the logic too far. Following this logic, it would be
1 Above, p. 52.
2 Below, p. 384 et seq.
8 Hall, p. 39.
352
The Duty of Recognition 353
impossible to explain how a belligerent community could be
capable of becoming a recipient of rights, even when they are
conceded to it out of ' pure grace '. It would be impossible to
maintain the principle that civil wars can be governed by rules of
international law as applied in international wars.
Westlake follows Hall in denying the legal right of belligerent
communities to be recognised," but he doubts Hall's remark that
a belligerent community has no legal personality. Even if it
should be held that there is no option where the existence of war
is clear, he argues, it still remains for the recognising State to
judge for itself as to the existence of this fact.
Two other writers holding this view may be mentioned,
namely, Woolsey and Sir Arnold McNair. In criticising President
Monroe's statement that the insurgents in Spanish America ' were
entitled by the law of nations, as equal parties to a civil war '.*
Woolsey advanced the extreme view that the insurgents had no
rights, and that the concession of belligerency is made on account
of considerations of policy or on grounds of humanity.6 He only
cited in his support the case of Paul Jones (1779), in which Great
Britain declared Paul Jones a pirate, because he was a British
subject operating under the commission of the revolting Colonies.
But that case was far from conclusive, as it was never brought
to a conclusion and a contrary claim had always been kept alive
by the United States until as late as 1844.
Sir Arnold McNair 7 argues his case with more support of
practice. But the precedents upon which he relies, with the
exception of Secretary Fish's Letter, are far from showing
conclusively the discretionary character of belligerent recognition.
First, he mentions the case of Paul Jones, to which reference
has already been made.
In the case of The Macedonian (1863),8 it is true that the
argument of Chile, based upon the rule of neutrality, was rejected,
but the American argument which prevailed was that Chile was
not recognised as a State until 1822. There was no decision bear-
ing directly upon the question of the recognition of belligerency.
4 Westlake, op. cit., vol. I, pp. 55-6.
5 Above, pp. 338-9.
6 Woolsey, op. cit., n. 2, p. 105 above, p. 302.
7 McNair, loc. cit., n. 86, p. 349 above, p. 471.
8 Lapradelle and Politis, Recueil des Arbitrages Internationaux, vol. 2, 1924, p.
182; Moore, International Arbitrations, vol. 2, p. 1449 et seq., cited in McNair,
loc. cit., p. 478.
23
354 Recognition of Belligerency and Insurgency
The two Opinions by the British Law Officers mentioned by
Sir Arnold ' are definitely in advocacy of the obligation of
recognition.
The first concerned the revolt of St. Domingo in 1864. In
an opinion of August 22, 1864, the Law Officers advised that
' if the facts are such as really to constitute a State of War between
the contending parties, according to the law of nations ', it would
not be open to neutral powers to refuse to submit themselves to
the exercise of belligerent rights * merely by declining to acknow-
ledge its existence '. The vigour of this statement was not in the
least neutralised by the fact that the British Government did not
issue a declaration of neutrality. This step was unnecessary, so
long as Great Britain had submitted to such duties as were
required from a neutral State.
The second was concerned with the Carlist wars in Spain. In
1874 the Serrano Government in Spain declared a blockade of
the Northern Coast of Spain. The Law Officers advised that
' assuming the blockade to be effective, Her Majesty's Govern-
ment must in our opinion recognise the fact that it exists de facto
and de jure. The result, however, will be that the Carlists
henceforth become belligerent '. Its value as a precedent was in
no way impaired by the fact that the blockade never took effect.
On the contrary, the case was a particularly strong one because
the Serrano Government was itself a government not recognised
by Great Britain.
Mr. Canning's dispatch to Sir Stratford Canning regarding
the Greek rebellion of 1825 is a classic example of the official
British attitude regarding the obligation of recognition. He says :
' The character of belligerency was not so much a principle
as a fact; that a certain degree of force and consistency, acquired
by any mass of population engaged in war entitled that population
• to be treated as a belligerent, and, even if their title were question-
able, rendered it the interest well understood by all civilised
nations so to treat them; for what was the alternative? A Power
or a Community (call it what you will) which was at war with
another, and which covered the sea with its cruisers, must either
be acknowledged as a belligerent, or dealt with as a pirate.' l0
* McNair, he. cit., p. 480.
10 Dispatch of October 12, 1825, quoted by Lord Russell in the House of
Commons, Pari. Deb., 3rd ser., vol. 162. cob 1566.
The Duty of Recognition 355
Obviously Canning had put forward trie second alternative
only to demonstrate the impossibility of the proposition.
Secretary Fish's letter to Motley,11 as quoted by Sir Arnold
McNair, does, indeed, seem to provide positive evidence of the
discretionary nature of recognition. Yet, after saying that ' every
sovereign power decides for itself, on its responsibility ', the
question of recognition, it went on to say that ' the rightfulness of
such an act depends on the occasion and the circumstances ', and
that it should be ' deliberate, seasonable and just in reference to
surrounding facts '. This last remark shows that the discretion
of the foreign State can be exercised only to the extent of deter-
mining whether a particular state of facts exists. It would not
be free to deny recognition in disregard of a standard set by
international law.
As to textbook writers, it is indeed true that little authority
can be found for the obligatory view of recognition. But this
does not warrant the conclusion that the evidence is against the
existence of such an obligation. The obvious explanation for
this silence is that for those who regard recognition as a declara-
tion of fact, the insurgent community may demand the exercise of
belligerent rights, but there would be no point in demanding a
formal declaration of recognition.12 Discussion on the right to
be recognised is therefore not in keeping with their treatment
of the subject.13
If ' recognition ' is understood in this sense — that is, not as a
condition precedent to the exercise of belligerent rights — then
those who are opposed to the obligatory character of recognition
must be admitted to be technically correct.
A right to be recognised can only be maintained by those who
regard recognition as both constitutive and obligatory.14 In
practice, however, since the refusal to accord recognition is often
accompanied by, and identified with, the denial of belligerent
rights, the claim for the exercise of belligerent rights usually
assumes the form of a claim for recognition. Therefore, for prac-
tical purposes, even under the declaratory theory, the right to
recognition may also be considered to exist.
11 September 25, 1869, Moore, Digest, vol, I. pp. 192-3.
12Jaffe, op. cit., n. 21, p. 15 above, p. 137.
"Walker, loc. cit., n. 19, p. 312 above, pp. 202-3.
u For a vigorous exposition of this view, see Lauterpacht, Part III.
356 Recognition of Belligerency and Insurgency
In a controversy of this nature, it may be expected that
opinions of writers are almost evenly divided and there is no
difficulty for either side to enlist a number of writers as supporters
of its view.15 Professor Lauterpacht, in his important recent work
on the subject,16 has exhaustively reviewed the opinions of writers
and it is not necessary to go over the same ground here.17 His
arguments, so far as they concern the duty of recognition, are
entirely in agreement with the views put forward in this work.
The duty of recognition, he argues, necessarily follows from the
fundamental principles of State independence and the law-
creating force of facts. To refuse recognition when it is deserved
would be to deny the nation its right of political self-determina-
tion18 and to disregard the practical necessity of conducting a war
in a regulated manner when all the conditions necessitating the
laws of war are present.19 The principles of the laws of war, it is
pointed out, are in their essence independent of the formal status
of the parties to the struggle. The same considerations of
humanity, the same fear of reprisals, and the same desire to avoid
involvement exist, whether it be a civil or an international war.
While his arguments are unanswerable so far as they concern
the obligatory character of recognition, Professor Lauterpacht's
general theory of belligerent recognition suffers the same set-
backs as does his theory of State recognition because of his
espousal of the constitutive view. To the argument that an
insurgent body, not being an international person, at least prior
to the recognition, has no right to be recognised, he answers that
when certain prescribed conditions are fulfilled, the parties to the
civil war would become pro tanto subjects of international law
15 Wehberg claims that the majority of writers are in favour of the discretionary
view (La Guerre Civile et le Droit International, 63 Hague Recueil, 1938,
p. 1, at p. 107). The contrary claim is made by Lauterpacht (p. 240), who lists,
as supporters of his view : Vattel, Bluntschli, Fiore, Lorimer, Kent, Wheaton,
Bernard, Harcourt, Westlake, Politis and the majority of writers during the
Spanish Civil War of 1936-1939. These latter include Scelle, Wehberg, Padel-
ford, Smith and O'Rourke. For the contrary view are the following writers :
Weisse, Rougier, Nys, Gemma, Woolsey, McNair, Kunz, Noel-Henry, and
Hall. See Lauterpacht, pp. 240-3.
16 Lauterpacht, Part III.
17 To Lauterpacht's list of writers who hold the obligatory view, we may add'
Halleck, op. cit., n. 21, p. 15 above, p. 85; Oppenheim, vol. 2. s. 76; Garner,
Recognition of Belligerency, 32 A.J.I.L., 1938, p. 106; Phillimore, op. cit.r
n. 21, p. 15 above, vol. 2, p. 24.
18 Lauterpacht, p. 228 et seq.
19 Ibid., p. 245.
The Duty of Recognition 357
' by the operation of the law ', although their rights ' may not be
operative so long as recognition of belligerency has not been
granted ' ; and that even if conceding that insurgents, not being
subjects of international law, do not have the right to recognition,
the duty of recognition may still be owed to the international com-
munity.20 The first argument amounts to an abandonment of the
constitutive view, for the capacity to possess rights, though not
immediately operative, presupposes legal personality. To the
second argument, the same criticism with regard to the recogni-
tion of States may be applied, namely, that the international
community can be entitled to have the belligerency of an insurgent
body recognised only when the conditions of war in fact exist, and
when such conditions exist, the rights of the belligerents would be
established, independently of recognition. The learned professor
himself admits in several places that consequences of belligerent
recognition may be brought about in the absence of recognition.21
There seems to be obvious difficulty in maintaining a theory of
the constitutive character of recognition together with the view
that recognition is obligatory.
Turning to the practice of States, we find the United States,
at least prior to the Civil War, strongly advocating the right of
insurgents to be recognised.22 Even on the question of the British
recognition of the Confederacy, there was little dispute over the
principle.23 The American courts were particularly pronounced
in their advocacy of the obligatory view. They have repeatedly
declared that when circumstances are such as to constitute war,
the world is bound to acknowledge the fact, and the contending
parties are entitled to the exercise of belligerent rights.21 The
American practice is summed up by Bernard as follows :
' That, in a struggle for independence carried on by a revolted
portion of the State against the State itself, foreign nations may
and should maintain a strict and impartial neutrality, opening their
20 Lauterpacht, p. 237.
21 Thus, he thinks that the enforcement of neutrality legislation (p. 235) and
the equal treatment of insurgents with the lawful government (p. 233) may
take place in the absence of recognition, and that, despite non-recognition,
the lawful government is not liable for acts of insurgents, because such
recognition is of ' evidential value ' only (p. 249).
"Above, pp. 337, 339.
23 Above, p. 342.
" For instance, The Prize Cases (1862), 2 Black 635, 666, 667; Williams v. Bruffy
(1877), 96 U.S. 176, 189, 191; Ford v. Surget (1878), 97 U.S. 596, 611.
358 Recognition of Belligerency and Insurgency
ports to both parties and on the same conditions, and not inter-
fering in favour of either to the prejudice of -the other.' 25
The British practice has been illustrated by several official
documents mentioned above.26 One circumstance which, in par-
ticular, has been uniformly held by the British Government as
impelling recognition is the assertion of belligerent rights by the
legitimate government. To the charge of the premature recogni-
tion of the Confederacy, Earl Russell retorted :
'It was, on the contrary, your own Government which, in
assuming the belligerent right of blockade, recognised the Southern
States as belligerents. Had they not been belligerents the armed
ships of the United States would have no right to stop a single
British ship upon the high seas.' "
This argument was also stressed by the British Law Officers,
who argued:
' The course pursued by the declaration of blockade on the
part of the Government of the United States had rendered this
recognition both necessary and inevitable. The right of blockade
which pressed so severely upon the interests of neutral States, was
a right incident, and incident only, to a state of war in which
two or more belligerents were engaged. . . .' 28
In support of this argument, it is pointed out by Bernard that ' it
must be a confused mind which fails to see that, if the right
existed on one side, it existed also on the other — or, in other
words, that any rule of international law which may be invoked
as against neutrals by either belligerent may be equally invoked
by both \29
During the revolt of St. Domingo against Spain in 1864, the
action of the British Government was criticised by the Law
Officers. Having acquiesced in the institution of a blockade by
the Spanish Government, the British Government, it was argued,
25 Bernard, op. cit., n. 12, p. 107 above, p. 117, n. 2 (italics added).
26 See above, p. 354.
27 Moore, Digest, vol. I, p. 190.
28 Opinion of February 14, 1867 (Smith, vol. I, p. 309). [Cx., however, the
declarations of ' blockade ' by the Chinese Government, June to August,
1949. Both the British and American Governments declined to recognise this
' blockade,' but neither was prepared to use naval forces to assist merchant
vessels to run the ' blockade ' {The Times, June 25, 1949, U.S. Information
Service, Daily Wireless Bulletin, No. 1019, July 2, 1949), and neither was at
that time prepared to recognise the Chinese Communists in any way (see
n. 13, p. 119 above).]
29 Bernard, op. cit., p. 116.
The Duty of Recognition 359
was no longer free to deny the same rights to the insurgents.30
The same argument was advanced concerning the Carlist War in
Spain, 1874."
The British practice was based upon the idea that the recogni-
tion of belligerency is the acknowledgment of the fact of war. As
it takes two belligerents to fight a war, it is inconceivable that one
party should be allowed to exercise belligerent rights while they
are denied to the other.
' Belligerent recognition,' writes Lorimer, ' is a mere declara-
tion of impartiality. To withhold from the claimant for recog-
nition the rights of belligerency, whilst we extend them to the
parent State, would plainly be to take part against it in the war —
to violate its blockade whilst we respect that of the parent State,
would be a non-neutral act.' 32
The question whether the contesting parties in a civil war
possess a right to belligerent recognition was acutely raised during
the Spanish Civil War of 1936-1939. While the fact that the
conflict possessed all the features which characterise war was
never disputed, the European Powers nevertheless decided that
belligerent recognition should be withheld, not only from the
insurgents, but from the legitimate government as well. The
British Foreign Secretary, Mr. Eden, announced in the House of
Commons on November 23, 1936, that the British Government,
not having accorded belligerent rights at sea to either side, British
naval protection would be given to British merchant ships outside
the three-mile limit of Spain.33 The same policy was adopted by
the French Government.34 The German Government condemned
the assertion of belligerent rights by the Spanish Republican
Government as a ' crime against the right of free navigation on
the open sea ', and declared that further interference with German
shipping beyond the three-mile limit would be met by force.35
Both the British and German Governments carried out their
30 Smith, vol. I, pp. 314-5. The advice was reiterated in an opinion of November
22, 1864 {ibid., p. 318).
31 Ibid., p. 321; above, p. 354.
32 Lorimer, op. cit., n. 19, p. 15 above, vol. I, p. 142.
33 Pari. Deb., H.C., 5th ser., vol. 318, col. 7.
31Padelford, loc. cit., n. 82, p. 348 above, p. 233.
35 The Times, August 21, 1936.
360 Recognition of Belligerency and Insurgency
threats, and forced the release of prizes captured by Republican
ships.36
The recognition of belligerent rights within, but not beyond,
territorial waters is an anomaly. If the fact of war had not been
conceded, foreign shipping ought not to be subjected to interfer-
ence even within the territorial waters. It is a settled principle
that in time of civil war ports cannot be closed unless in exercise
of belligerent rights.37 This principle cannot be maintained if
belligerent activities are allowed in the territorial waters. On the
other hand, if the fact of war had been admitted, as the conduct
of foreign States seemed to imply,38 the partial, permission to
exercise belligerent rights certainly finds no justification in inter-
national law. At any rate, the right of the lawful government to
assume a belligerent status, in the light of the existence of war,
could not be denied on any ground.38
In defence of the policy of the European Powers, Sir Arnold
McNair argues that, there being no duty of recognition, the partial
exercise of belligerent rights by insurgents befitted the condition
of a recognition of insurgency. A right of ' quasi-blockade ' may
be exercised by insurgents so recognised which is confined in its
operation to the three-mile limit.40
The learned writer seems to argue that, since recognition of
belligerency is not a duty, a foreign State may recognise an
inferior status of ' insurgency ', even though the struggle may
partake of all the characteristics of a real war. This argument has
been effectively opposed by Walker, who argues that the ' recogni-
tion of insurgency ' is the acknowledgment of a state of things in
which belligerency does not exist in fact, a situation quite
dissimilar to the conditions in Spain. Foreign States may object
to the capture of ships by a captor in the service of a community
which does not fulfil the requirements of belligerency at all, but
36 See the cases of The Gibel Zerjhon and The Kamerun, cited in Smith, loc. cit.,
n. 4, p. 308 above, p. 27. See also The Palos case, where Spanish ships were
seized by Germany in retaliation for the capture of German ships (The
Times, January 2, 1937; see H.M.S.O., Document on German Foreign Policy,
1918-1945, Series D, vol. 3, The Spanish Civil War, 1951, p. 201).
The recognition of the Nationalist faction as the Government of Spain
by Germany and Italy gave rise to the speculation whether belligerency was
also recognised by these countries. The case of The Palos seems to indicate
that there was no such recognition. On this point, see Wehberg, loc. cit., p. 97.
37 See below, p. 385.
38 See above, pp. 346-7.
39 See Oppenheim, vol. II, p. 197, n. 6; Lauterpacht, pp. 193-9.
40 McNair, loc. cit., p. 483.
The Duty of Recognition 361
they cannot object to it merely because the belligerent actually
existing has not been recognised.11
Nor can the policy of the Powers be justified by the argument
that to refrain from protecting their ships within the three-mile
limit was merely an act of self-abnegation and did not involve the
recognition of belligerency.42 In time of peace, it is true, the
protection of national ships by the navy stops at the outer edge
of the three-mile limit of another State. But this only means that
protection is being provided therefrom by the territorial State, who
would be held liable for molestations within the three-mile limit.
Such a responsibility cannot be shirked, unless the situation is
one of war. The foreign States did not exact responsibility from
the Spanish Government, not because of self-abnegation, but
because they had no right to do so. Their right to protection
could not be asserted in a condition of actual warfare. By
refraining from claiming exemption from injurious acts of war,
these Powers had in fact acknowledged the state of affairs as being
no longer peace, but war. That being the case, not only was there
no case of self-abnegation within the three-mile limit, but even the
denial to the belligerents of their belligerent rights on the high
seas was unjustifiable.
The situation in Spain was plainly a case of war, a fact which
was admitted in various instances, but never formally recognised.
Why was the recognition refused? The principal reason as given
by Lord Plymouth, Chairman of the Non-intervention Committee,
was that the presence of foreign volunteers made normal applica-
tion of the principles of civil war impossible.13
It is difficult to share the view that the participation by
foreign volunteers could in any way affect the application of the
laws of war. The participation by foreign States, at most, trans-
formed the struggle into an international war. It would be all
the more reason for the application of the laws of war. It has been
argued that the purpose of non-recognition was to minimise the
fearful possibility of a general embroilment. But it is difficult to
see how non-recOgnition could be a useful means to that end.
41 Walker, loc. cit., pp. 209-10.
"McNair, loc. cit., p. 493.
43 The Times, July 17, 1937. Similar views were expressed by Mr. Eden in the
House of Commons, June 25, 1937 (Pari. Deb., H.C., 5th ser., vol. 325, col.
1608) and Lord Halifax in the League Council (L.o.N. Off. J., 1938, p. 330).
This view is supported by Lauterpacht, pp. 251-2.
362 Recognition of Belligerency and Insurgency
The prevention by the several States of the departure of their
nationals and the embargo on arms could in no way be made
less effective by the recognition of belligerency. The purpose of
the rules regarding belligerent recognition and the rules of
neutrality is precisely the avoidance of involvement. If the fear
of becoming involved was the principal motive, it would seem
that recognition, and not non-recognition, would prove a more
effective means for the securing of that desired end. The result
of non-recognition in this case was merely the creation of con-
fusion in the law of recognition and the distortion of the legal and
logical consequences of a state of actual war.
It must be remembered that the holders of the discretionary
view of recognition have never stated their theory in unqualified
terms. Hall admits that when a civil struggle reaches a stage
of development, ' Humanity requires that the members of such a
(insurgent) community shall be treated as belligerents, and if so
there must be a point at which they have a right to demand what
confessedly must be granted.' " But the obligation to recognise
the belligerency of the insurgents, he insists, ' flows directly from
the moral duty of human conduct ', and is therefore not a legal
obligation.
To admit that the recognition of belligerency is a duty, albeit
a moral duty, is to admit a great deal. The bulk of the inter-
national law of war, and no less so the principles regarding the
recognition of belligerency, is designed for one professed purpose,
namely, to bring armed hostilities within humanitarian limits."
If obligations assumed for reasons of humanity are to be regarded
as merely moral obligations, there would be very little left in the
laws of war which may be regarded as imposing a legal obligation.
If we are to regard civil war as a fact which carries with it legal
consequences, it would seem impossible to deny that the duty to
respect these legal consequences is a legal duty. Where the
failure to respect them would involve a foreign State in conduct
inconsistent with neutrality, were a war between two recognised
States in progress, it would be clear that a legal duty is involved.
We may conclude by saying that the duty of the third States — and
the lawful government — in admitting the exercise of rights of war
" Hall, p. 38. Similarly, Westlake, op. cit., vol. I, pp. 55-6.
45 See Canning's dispatch to Wellesley, December 31, 1864 (Smith, vol. I, p. 296).
The Duty of Recognition 363
by the contending parties is based upon exactly the same con-
siderations as in a case of an international war. Refusal to
recognise a state of war when it exists would involve third States
in the risk of having to take sides, and might cause the lawful
government to take reprisals.46 When a State is prepared to face
such risks, then, and only then, may the non-recognition be
regarded as discretionary.
1 See Lauterpacht, p. 53.
CHAPTER 23
CONDITIONS FOR RECOGNITION
There seems to be unanimity among writers that recognition of
belligerency cannot be accorded unless certain conditions are ful-
filled. To one set of conditions, which may be called ' objective
conditions ', they are also in practical agreement. But as to
* subjective conditions ', the divergence of view is as sharp as in
the question of the duty of recognition.
The principal objective condition for recognition is the
existence of an actual war. But what are the conditions of fact
which justify the conclusion that a war actually exists? Accord-
ing to Dana, two factors need to be considered : ' the existence of
a de facto political organisation of the insurgents, sufficient in
character, population and resources to constitute it, if left to itself,
a State among the nations, reasonably capable of discharging the
duties of a State ' ; and the actual employment of military forces
on each side acting in accordance with the rules and customs of
war.1 This view is shared by numerous writers 2 and by the
Institute of International Law.3 It is also the view adopted in
Anglo-American practice.1 In some of these opinions, special
emphasis is laid upon the character of the political organisation
of the insurgents. Observance of the international laws of war
1 Dana's Wheaton, s. 23, n. 15.
2 Westlake, op. cit., n. 15, p. 15 above, vol. I, p. 51; Beale, The Recognition of
Cuban Belligerency, 9 H.L.R., 1895-1896, p. 406, at p. 407; Oppenheim, vol. 2,
s. 76; Wehberg, loc. cit., n. 15, p. 356 above, pp. 87-8; Lauterpacht, p. 176;
Fauchille, op. cit., n. 24, p. 15 above, vol. I, Pt. I, pp. 309-10; Rougier, op. cit.,
n. 2, p. 97 above, pp. 213, 384; Brierly, op. cit., n. 17, p. 15 above, p. 126.
[According to Moore : ' The only kind of war that justifies the recognition
of insurgents as belligerents is what is called " public war "; and before
civil war can be said to possess that character the insurgents must present
the aspect of a political community or de facto power, having a certain
coherence, and a certain independence of position, in respect of territorial
limits, of population, of interest and of destiny', 21 Forum, 1896, p. 291;
Collected Papers, vol. 2, p. 100.]
3 Article 8 of the Resolution of 1900 (Scott, op. cit., n. 9, p. 335 above, p. 159).
4 See the opinion of the British Law Officers of August 14, 1867, regarding the
Cretan insurrection (Smith, vol. I, p. 263); Messages of President Grant of
June 13, 1870, and December 7, 1875, regarding the Cuban insurrections
(Moore, Digest, vol. I, p. 195, pp. 196-7).
364
Conditions for Recognition 365
would be impossible without an organisation closely assimilated
to a State. The Cuban insurrection of 1868-1878 was refused
recognition by the United States ostensibly on this ground."
Rougier takes a more lenient view, suggesting that the
government of the insurgents need not be stable or generally
accepted. It is sufficient that it maintains an intention to
supplant the legitimate government and is obeyed by the
insurgents themselves.6
The requirement of the observance of the rules of war as a
condition for recognition reveals a logical weakness in the con-
cession theory. The admission of this condition must necessarily
presuppose that the contesting parties possess sufficient capacity
to exercise the rights of war prior to the recognition. To argue
that they can have no rights until recognised and to prescribe as
a condition precedent to recognition the actual exercise of these
rights is a logical absurdity.
As regards subjective conditions, two elements may be con-
sidered : the probability of success, and the extent to which the
interests of third States are affected.
Regarding the first point, President Monroe in his message to
Congress, March 8, 1822, remarked that, as soon as the revolt in
Spanish America assumed such a form ' as to make the success
of the provinces probable ', the insurgents were entitled to rights
of belligerency.7 Fauchille thinks that recognition may be
accorded where the forces engaged appear to be equal and it is
difficult to foresee the issue of the conflict.8 Hall puts it in the
reverse form, saying that the presence of certain conditions
justifies recognition ' unless it is evidently probable that the
independent life of the insurgent government will be so short
that the existence of war may be expected to interfere with the
interests of the foreign State in a merely transient and unimportant
manner.9 It is believed that neither the probability nor the
improbability of success, nor the impossibility of foreseeing the
outcome of the conflict ought to be made the decisive factor in
the determination of the question of recognition. Elements of this
5 Moore, Digest, vol. I, p. 195.
6 Rougier, op. cit., p. 387.
7 See above, p. 339.
8 Fauchille, op. cit., vol. I, Pt. I, p. 309.
•Hall, pp. 40-1.
366 Recognition of Belligerency and Insurgency
kind are so speculative and subjective, that to accept them as a
test for the legality of recognition is in effect to do away with
all tests.10
This argument may also be used against setting up the interests
of the third State as a condition for recognition. The view .that
recognition may not be accorded by third States unless their
interests are immediately involved has strong proponents.11
Instances in the practice of States can also be found to support
this view. Thus, Secretary Fish questioned the ' necessity and
propriety ' of the British recognition of the belligerency of the
Confederacy.12 The test of the necessity of defining relations was
set up by Presidents Grant and McKinley as a ground for not
recognising the Cuban rebellions.13
As has been pointed out, the question whether a situation so
affects the interests of a third State as to necessitate a definition
of relations with the contending parties is entirely a matter of
subjective appreciation, incapable of an objective determination.
It is useless as a permissible condition for recognition, because
it is equivalent to saying that the objective conditions having
been fulfilled, it is left entirely to the discretion of the third State
to decide whether recognition is opportune. To maintain such
a test is to deny the duty of recognition, for it is always open to
the third State to say that its interests are not sufficiently affected.
It is thought by some writers that the test of necessity is valuable
in narrowing down the freedom of third States in their effort to
give gratuitous support to the insurgents.14 It is doubtful whether
this desired result can be attained if the third State alone is com-
petent to decide upon the existence of the necessity. On the other
hand, the lawful government is just as eager as the recognising
10 See Wehberg, loc. cit., p. 88; Rougier, op. cit., p. 389. See note of Secretary
Forsyth to Mr. Gorostiza, Mexican Minister, September 20, 1836, in which
the remark in Monroe's message, if not repudiated, was interpreted as in-
significant (Moore, Digest, vol. I, pp. 176-7).
"Hall, p. 40; Westlake, op. cit., vol. I, p. 51; Dana's Wheaton, s. 23, n. 15;
Holland, Lectures on International Law, 1933, p. 445; Calvo, op. cit., n. 19,
p. 337 above, vol. I, s. 84; Oppenheim, vol. II, s. 76; Brierly, op. cit., p. 126;
McNair, loc. cit., n. 86, p. 349 above, p. 476; Lauterpacht, pp. 239-40; Rougier
(op. cit., p. 384), who, however, criticises the more extreme view of de Olivart.
See also other authorities cited in Wehberg, loc. cit., p. 89.
12 Fish to Motley, May 15, 1869 (Moore, Digest, vol. I, p. 192).
ls Grant's Message, December 7, 1875 (ibid., p. 196), quoted in McKinley's
message, December 6, 1897 (ibid., p. 199).
14 Lauterpacht, p. 240.
Conditions for Recognition 367
third State to employ this test to its own advantage.15 If the lawful
government may also have a say in deciding on the necessity of
recognition, there will be no end to the controversy, as
the subjectivity of the matter would not admit of impartial
ascertainment.16
To postulate the interests of third States as a condition for
recognition, it may be submitted, incurs the danger of seeing the
question of belligerent recognition in a wrong perspective. As
in international war, the application of international law to a
situation of domestic war arises from the desire and the necessity
to regulate, for the orderly conduct of all parties concerned, the
belligerents as well as neutrals. The egoistic interests of third
States have no right to demand priority of consideration.17
Civil War is a fact, the existence of which does not depend
upon acknowledgment. A foreign State, which is so far removed
from the theatre of war that it may not feel a definition of attitude
compelling, may yet, as a matter of law, not be free to ignore
the fact. This principle is clearly established with regard to inter-
national wars.18 The principle is certainly applicable to a civil
war. It is conceivable that, in case of a civil war in a remote
country, while the interests of a third State may not be materially
affected, questions of law may arise in private litigation depending
upon the determination of the legal situation abroad. Whether
recognised or not, the fact of civil war remains, and with it the
legal consequences of war.19 When a civil war exists, it exists
with regard to all States. For a State whose interests are immedi-
ately involved the urgency for a declaration of attitude is more
manifest 2° ; but there is nothing to prevent it from submitting
itself to neutral duties without any express pronouncement.21 The
"Garner criticises Dana's insistence on this test as an effort to support the
national cause (Garner, loc. cit., n. 17, p. 356 above, p. 111). See also Rougier's
criticism of de Olivart (pp. cit., p. 348).
'" See the Anglo-American controversy over the British recognition of the
Confederate belligerency (Moore, Digest, vol. I, pp. 188-9, 192).
"See Wehberg, loc. cit., p. 91.
ls Oppenheim, vol. II, p. 515; Moore, An Appeal to Reason, 11 Foreign Affairs,
1935, p. 547, at pp. 561-2.
19 In Martinez v. Bechard et Mathieu (1939) the French Trib. Com. de Narbonne
held that the acts of hostilities during the Spanish Civil War, 1936:1939, which
was unrecognised by France, constituted force majeure, exonerating a carrier
from the liability for the loss of goods (51 R.G.D.I.P., 1947, pp. 256-7).
20 See Historicus, Letter to The Times, March 22, 1865.
21 Bernard, op. cit., n. 12, p. 107 above, p. 116.
368 Recognition of Belligerency and Insurgency
extent to which its interests are being affected may be a measure
of the necessity of a general pronouncement of attitude by a third
State, but it is not the condition under which the acknowledgment
of the fact of war or the submission to neutral duties is
permissible."
22 See similar view of Garner, loc. cit., p. Ill; Wehberg, loc. cit., pp. 90-1. That
condition is omitted by Fauchille (op. cit., vol. I, Pt. 1, p. 310) and the Institute
of International Law (Resolutions of 1900, Scott, op. cit., p. 159), which
deliberately rejected it (see Annuaire de Vlnstitut de Droit International,
1900, pp. 222-3).
CHAPTER 24
MODES OF RECOGNITION
In our previous discussion we have shown that an act of recogni-
tion of belligerency is an acknowledgment by a State of the
existence of a civil war and an expression of the intention to
assume the rights and duties under the laws of war and neutrality.
Theoretically, since the existence of a civil war is a fact indepen-
dent of recognition, it would follow that the question by whom
recognition should be given is altogether without significance.
In practice, however, since there is no international authority to
judge the existence of a civil war, recognition by individual States
must be regarded as possessing great evidential value, which in
some countries is conclusive upon the organs of those States.
Moreover, so long as recognition does not in fact become auto-
matic, recognition, however well justified, may nevertheless touch
the sensibility of the parties and must be handled with tact and
deliberation. For this reason, the question of the capacity to
recognise and the form in which recognition is effected must be
regarded as deserving careful study.
Two questions arise in connexion with capacity of the three
bodies concerned in a civil war — the established government, the
insurgent body and the foreign State. Who is competent to
pronounce upon the existence of war? What particular organ of
those bodies should be entrusted with the power to make the pro-
nouncement? This latter question, as we shall see, leads to,
and more or less blends with, the further question of form.
§ 1. Who is Competent to Accord Recognition?
This question is of great importance to those who hold the con-
cession theory. To them, the recognition of belligerency entails
consequences which vitally affect the rights and duties of all the
three parties concerned. They must make sure that the exercise
of a power of such gravity is reserved in the most worthy hands.
Exercise of belligerent rights by the insurgents. The right
369
24
370 Recognition of Belligerency and Insurgency
of the insurgent body to pronounce that a war exists is, according
to those holding the concession theory, out of the question. An
insurgent body, at least one which is unrecognised, is, according
to them, legally non-existent as an entity, and can perform no
act productive of legal results. It cannot create its own legal
existence by an act which is devoid of legal value.1
The practice of nations, however, shows that this theory has
not always been followed. In numerous instances belligerent
rights were exercised by insurgents before their recognition by
foreign States. For example, on the occasion of the detention of
the Spanish ship Santa Theresa del Jesus by a Buenos Aires
privateer during the revolt of the Spanish colonies in America,
the British Government was advised to treat the case as a prize of
war between two belligerents.2 Again, writing with reference to
some ships condemned by the Peruvian authorities, Robinson
considered that ' the asserted independent governments would
have a right to exercise the ordinary privileges of war in maritime
capture '.3 At the time of these events the British Government
had not yet fully recognised the belligerency of the insurgents.1
During the Greek rebellion against Turkey, on various occa-
sions prior to the British recognition of belligerency, June 6, 1823,
the exercise of belligerent rights by the insurgents passed
unchallenged by the British Government.5 Such rights were even
exercised prior to the Neutrality Proclamation of the Ionian
Government on June 7, 1821.6
In our previous discussion we have mentioned other instances
where belligerent rights have been exercised by insurgents in the
absence of any recognition by any sovereign State.7 These
instances show that, while the insurgents cannot act in any way
to bind the other parties, their assertion of rights of belligerency
1 Hall, p. 39; Oppenheim, vol. II, s. 59; Resolutions of the Institute of Inter-
national Law, 1900, Article 5 (2) (Scott, op. cit., n. 9, p. 335 above, p. 158);
McNair, loc. cit., n. 86, p. 349 above, p. 471; Wilson, Insurgency and Inter-
national Maritime Law, 1 A.J.I.L., 1907, p. 46.
2 Opinion of August 11, 1818 (Smith, vol. I, p. 275).
3 Opinion of September 14, 1822 (ibid., p. 279).
4 The recognition did not take place until February 21, 1823 (Smith, ibid., p.
281). On October 18, 1822, Canning was still threatening the Spanish
Government with the granting of recognition (ibid., p. 279).
5 See the acquiescence in the insurgent blockade (ibid., p. 287); and the
Admiralty instructions of April 30, 1823, to maintain neutrality (ibid., p. 288).
6 See above, p. 340.
7 See above, p. 337.
Modes of Recognition 371
cannot be fairly opposed if there is a real war.' On one occasion,
the United States even went so far as to admit that ' the demon-
stration by the insurgents of their " ability " actually to enforce a
blockade involving, as the measure does, the assertion of one of
the highest rights of public war, would be accepted as satisfactory
proof of the justice and propriety of permitting them to exercise
such rights '.*
Recognition by the established government. The recognition
of belligerency by the established government before its
recognition by any foreign Power is a less common phenomenon.
To say the least, such a recognition is necessarily a sign of the
weakness of the established government, and any act that
publicises this fact would inevitably enhance the prestige of the
insurgents to the detriment of the established government. Apart
from this psychological reason, the assimilation of a civil strife to
an international war brings about changes of vital importance in
the rights and duties between the contesting parties, as well as
between each of them and foreign States. These changes include
the rights of the contestants to visit and search neutral vessels; to
intercept contraband destined for enemy ports; to capture and
condemn neutral vessels for breach of blockade; to set up prize
courts for the adjudication of maritime captures. To the insur-
gents accrue the rights to float loans in foreign markets, to draw
from foreign resources the necessary war materials and equipment
and, finally, to be treated in all respects as equal belligerents in
accordance with the laws of war.10 By and large, the whole
transaction militates heavily in favour of the insurgents. It may
be expected, therefore, that, as a rule, the established government
would be reluctant to acknowledge such a change. Nothing but
the irresistible force of circumstances can persuade it to take such
a step.
Where a case does arise in which an established government
recognises the belligerency of its insurgent subjects, how far and
8 See, however, Tatem v. Gamboa [1938] 3 All E.R. 135, 139, where it was
held by Goddard J. that ' I do not know of any doctrine in international
law which enables one side in a civil war to establish a blockade, or to declare
a blockade, unless, of course, the other governments recognised them, and
grant belligerent rights'.
"Secretary Gresham to Thompson, January 11, 1894, regarding the Brazilian
revolt (Moore, Digest, vol. 2, p. 1114).
"See Dancts Wheaton, s. 23, n. 15.
372 Recognition of Belligerency and Insurgency
in what manner will the rights and duties of the parties concerned
be affected?
Oppenheim is of the view that acts of recognition by the
established government or by third States are not binding on each
other. He explains :
' Since, however, recognition may be granted by foreign States
independently of the attitude of the legitimate Government, and
since recognition granted by the legitimate Government is not
binding upon foreign Governments, it may happen that insurgents
are granted recognition by the legitimate Government while
foreign States refuse it, and vice versa. In the first case, namely,
recognition of the insurgents by the legitimate Government but
not by foreign Governments, the rights and duties of neutrality
devolve upon foreign States, as far as the legitimate Government
is concerned. Its men-of-war may visit and search their merchant-
men for contraband; a blockade declared by it is binding upon
them; and the like. But no rights and duties of neutrality devolve
upon foreign States as regards the insurgents. A blockade
declared by them is not binding, and their men-of-war may not
visit and search merchantmen for contraband. On the other hand,
if insurgents are recognised by a foreign State but not by the
legitimate Government, that foreign State has all the rights and
duties of neutrality so far as the insurgents are concerned, but
not so far as the legitimate Government is concerned \u
This opinion is obviously self-contradictory. If the recogni-
tion by the established government cannot ' bind ' foreign States,
there is no reason why foreign States should observe the
obligations of neutrality, even towards the established govern-
ment alone. On the other hand, if the third State is bound by
the recognition by the established government to observe neutral
duties towards it, the result would be contrary to Oppenheim's
positivist doctrine that one State cannot impose duties on another
without the latter's consent. It would also lead to the absurdity
of foreign States observing ' neutral ' duties in a war where there
is one belligerent.
This criticism may also be made of the Resolution of
the Institute of International Law, 1900, Article 5 (1) of which
reads :
11 Oppenheim, vol. II, pp. 521-2.
Modes of Recognition 373
' A third Power is not bound to recognise insurgents as
belligerents merely because they are recognised as such by the
Government of the country in which civil war has broken out.' 12
Here the Resolution deals only with the effect of recognition by
the established government upon third States, and not vice versa.
Third States are not bound to recognise the insurgents as
belligerents, but nothing is said about the right of the established
government to assume belligerent status. The same one-sidedness
also occurs in Article 5 (2), where it is stated that a non-recognis-
ing foreign State is not required to respect the blockade instituted
by the insurgents. There is no mention of the blockade instituted
by the established government. It seems that, as far as this
Resolution is concerned, the question of the relations between the
established government and the non-recognising foreign State
remains an open one."
Sir Arnold McNair, in defence of the view criticised above,
argues that the opposing theory would be to enable the established
government to release itself from the responsibility for future
acts of the rebels, and to invest itself and the rebels with rights
against third States without consulting their wishes."
Regarding the first point, we have shown that responsibility
for the acts of rebels does not as a rule devolve upon the estab-
lished government after the suppression of the rebellion.15 In
spite of some views expressed to the contrary,16 Professor
Lauterpacht confidently, and, it is believed, with justice, maintains
that ' there is no warrant for the opinion that, normally, the lawful
government is responsible for acts of the insurgents or for losses
suffered by foreigners as the result of the insurrection V7 and that
"Scott, op. cit., p. 158.
13 See the interpretation that third States are nevertheless bound to respect the
belligerent rights of the lawful government (Lauterpacht, p. 201).
"McNair, loc. cit., p. 477.
15 Above, p. 332.
16 Phillimore, op. cit., n. 21, p. 15 above, vol. II, p. 24; Hall, pp. 36-7 (but see
contrary view at p. 274); Rougier, op. cit., n. 2, p. 97 above, p. 220; Goebel,
The International Responsibility of States for Injuries Sustained by Aliens
on Account of Mob Violence, Insurrections and Civil War, 8 A.J.I.L., 1914,
p. 802; Wehberg, loc. cit., n. 15, p. 356 above, p. 99; Institute of International
Law, Resolutions of 1927, Article 7 (1), 22 A.J.I.L., 1928, Special Supplement,
p. 331; other authorities cited in Lauterpacht, p. 248.
17 Lauterpacht, p. 247. Accord, Fiore, op. cit., n. 25, p. 15 above, Article 333;
Borchard, op. cit., n. 61, p. 129 above, p. 229; Berlia, La Guerre Civile et la
Responsabilite Internationale de I'Etat, 54 R.G.D.I.P., 1937, p. 51; [Schwarzen-
berger, op. cit., n. 55, p. 22 above, pp. 241-2. See also the Home Missionary
374 Recognition of Belligerency and Insurgency
' international law does not postulate the organised and semi-
permanent character of insurgency, evidenced by recognition of
belligerency, as a condition of the absence of liability on the part
of the lawful government '."
Sir Arnold McNair's second argument is logically unassailable,
if we accept the positivist hypothesis. It is more thoroughgoing
than Oppenheim's argument that recognition by the established
government may impose neutral duties on third States, at least
towards the established government. Here it is denied that the
recognition by the established government can even do that.
Recognition by the established government can merely affect its
relations with insurgents. Presumably, recognition by third
States can also only affect their relations with the insurgents.
Under such a theory there would be no avenue through which a
belligerent-neutral relation could be created between the estab-
lished government and third States, except, perhaps, by
agreement. This situation is described as absurd and unjust by
Rougier."
If recognition by the established government cannot create
a belligerent-neutral relation between itself and third States, still
less can it create such a relation between third States and the
insurgents.20
It is evidently a logical impossibility, starting from a positivist
hypothesis, to arrive at a conclusion according to which recogni-
tion by the established government can create neutral duties for
Society case (1920), in which the British- American Claims Arbitral Tribunal
declared that ' it is a well-established principle of international law that no
government can be held responsible for the acts of rebellious bodies of men
committed in violation of its authority, where it is itself guilty of no breach
of good faith, or of no negligence in suppressing insurrection' (15 A.J.I.L.,
1921, p. 294, at p. 296).] In a directive for the negotiation of the Treaty of
Washington, 1871, the United States claimed non-liability for rebels in locali-
ties where they exercised ' superior force '. The recognition by Britain was
not advanced as a ground for non-liability (Moore, International Arbitrations,
vol. I, p. 684). Harvard Research, Responsibility of States (33 A.J.I.L., 1939,
Special Supplement, p. 133), provides that the State is not liable, if there is
no lack of due diligence (Article 12, at p. 193). Recognition of belligerency
makes that non-liability absolute (Article 13, at p. 195).
18 Lauterpacht, p. 249. See also Prats v. U.S. decided by U.S.-Mexican Claims
Com. (Moore, International Arbitrations, vol. 3, pp. 2886, 2896; above, p. 344).
19 Rougier, op. cit., pp. 227-8.
20 Rougier suggests that the recognition by the established government creates
the sovereignty of the belligerent community and third States must respect
the latter's rights as a delegation by the established government {op. cit., p.
229). This seems to be bordering on the absurd. How can it explain the
recognition by third States?
Modes of Recognition 375
third States either towards itself or towards the insurgents. The
solution must be sought from the view that the rights and duties
between belligerents and neutrals arise directly from the operation
of law consequent upon the existence of the fact of war. Recogni-
tion by the established government is almost conclusive evidence
that such a war exists. For no government would be willing to
place a domestic struggle on the plane of international law, unless
the situation is really out of hand. When the established govern-
ment has made clear that the war will have to be fought according
to the law of nations, third States are in fact offered, as in an
international war, the choice between taking sides or remaining
neutral. If they decide to remain neutral, they are subject to
the laws of neutrality.21 The parties are thus subjected to a
regime of war not through the imposition of any one party, but
through the operation of the law.
On the question whether the established government has a
right to recognise the belligerency of the insurgents and thereby
invest itself with belligerent rights against third States, Professor
Lauterpacht is strongly in favour of an affirmative answer and
brings forward an abundance of material in support of this view.
It is an unanswerable argument that ' the right to wage war is,
in the absence of obligations to the contrary, an undoubted right
of the State ', and that ' it does not lie with outside States to deny
to it that right '." It is immaterial against what adversary the
war is being waged.23 Such a right has, with few exceptions,21
been uniformly admitted by third States, whenever it has been
asserted. A few outstanding cases may be mentioned to illustrate
the uniformity of the practice.25
British practice has been consistently to respect the blockade
instituted by the established government against rebel ports. Thus
during the St. Domingo revolt in 1864, the British Government
was advised by the Law Officers that a notification of blockade
of the Dominican ports by Spain necessarily implied the existence
of war." Again, during the Carlist War of 1874 in Spain, the
21 See Twiss, op. cit., n. 26, p. 15 above, vol. II, s. 239.
22 Lauterpacht, p. 194.
23 Twiss, op. cit., vol. II, s. 239.
24 See the case of the Spanish Civil War, 1936-1939, below, p. 377 et seq.
- For further examples, see Lauterpacht, p. 193 et seq.
26 Smith, vol. I, pp. 313-7.
376 Recognition of Belligerency and Insurgency
British Government took the view that if the blockade proclaimed
by the Serrano Government was effective, that blockade would
exist both de facto and de jure, and that consequently ' the Carlists
henceforth become belligerents \27
In the course of the controversy over the British recognition
of the belligerency of the Confederacy, the British Government 28
justified its action on the ground that the Proclamation of
Blockade by President Lincoln on April 19, 1861, had already
established the existence of the war.2'
In a letter to Lord Lyons, July 19, 1861, Lord Russell declared
that ' Her Majesty's Government do not intend to dispute the
rights of blockade on the part of the United States with regard
to the ports in the possession of the Confederate States ', but such
a blockade must be an exercise of war right.30
During the controversy that followed, the United States
Government did not contradict the British view as to the effect
of the blockade. It based its contention rather upon the pre-
conceived unfriendly attitude of the British Government, as was
shown by the fact that it had already formed its decision to
recognise the Confederacy before it had received complete
knowledge of the American Proclamation.31
Summing up the situation, Hall concludes:
'The Government of the United States had recognised the
belligerent character of the Southern Confederacy by proclaiming
a blockade, that being a measure the adoption of which admitted
the existence of war, in rendering foreign ships liable to penalties
illegal except in time of war.' "
The right of the established government to exercise belligerent
rights has been strongly upheld by the United States Supreme
Court. In The Prize Cases (1862) it was held that a nation should
have the right to meet a rebellion by the exercise of belligerent
powers, in which neutrals are bound to acquiesce. Where
a civil war exists and official recognition is given by the
27 Smith, vol. I, p. 321.
28 Opinion of the Law Officers, February 14, 1867, quoted at p. 358 above.
29 For the text of the American Proclamation, see Bernard, op. cit., n. 12, p. 107
above, pp. 78-80. For the text of the British Proclamation, see ibid., p. 135;
also 51 B.F.S.P., 1860-1861, p. 165.
,0 51 B.F.S.P., 1860-1861, p. 206.
" See Moore, International Arbitrations, vol. 1, p. 563.
"Hall, pp. 44-5.
Modes of Recognition 377
sovereign, it is held, ' a citizen of a foreign State is estopped to
deny the existence of a war with all its consequences as regards
neutrals '.33
It is abundantly clear that, both in theory and in practice,
recognition of insurgents as belligerents by the established govern-
ment has the effect of placing the relations between that
government and foreign States upon the basis of the international
law of war and neutrality. This is really another way of stating
a more general proposition that the existence of a war, as
evidenced by the action of the established government, brings
about legal consequences binding upon all parties concerned. In
the light of this general principle, the events occurring during the
Spanish Civil War in 1936-1939 must be considered as exceptions
to the rule.
On August 9th and 1 1th the Spanish Government published
two decrees proclaiming that certain territories occupied by
the insurgents were to be ' considered as war zones and subject
to blockade '. Since it is not competent to a State to close by
municipal decree a port in the hands of insurgents,34 the Spanish
decree was evidently issued in pursuance of international law.35
The British and the United States Governments did not contest
in principle the right of the Spanish Government to establish a
blockade. From these facts, some writers on international law
drew the conclusion that the right of the Spanish Government
to establish a blockade jure gentium, and thereby to place the
conflict upon an international law basis, had been admitted.38
On the other hand, the British " and other governments
steadfastly denied that either side was entitled to belligerent rights.
This position was expressly maintained in the Preamble of the
Nyon Agreement.38 Sir John Simon's statement in the House of
" 2 Black 635, 669. See also Dancts Wheaton, s. 296, n. 153; the cases of The
Tropic Wind (1861), printed in 51 B.F.S.P., 1860-1861, pp. 207, 210-11 and The
Amy Warwick (1862), 2 Black 635, 2 Sprague 123, quoted in Bernard, op. cit.,
p. 98.
84 See below, p. 385.
35 For the view that the Spanish decree was only a closing of ports, see Padelford,
op. cit., n. 71, p. 346 above, pp. 9-12.
36 Smith, loc. cit., n. 4, p. 308 above, p. 27; Garner, loc. cit., n. 73, p. 347 above,
p. 72.
" See statement of the Foreign Secretary in the House of Commons, December
8, 1937 (Pari. Deb., H.C.. 5th ser., vol. 357, col. 330).
38 Signed on September 14, 1937, with a Supplementary Agreement signed on
September 17 (31 A.J.I.L., 1937, Supplement, p. 179).
378 Recognition of Belligerency and Insurgency
Commons, April 14, 1937, was an unqualified denial of the right
of the Spanish Government to assert belligerent status :
'I never said, and the British Government never said, that
when the Spanish Government, which was not recognised as
engaged as a belligerent, took upon itself to say that it would
endeavour to establish a de facto blockade, the blockade was
admitted to be lawful. . . . When one says that belligerent rights
are not admitted or conceded, that applies to both sides. There
is no more right in a government that is fighting a civil war to
interfere as belligerents with ships on the high seas because they
are a government, than there is such a right on the part of
insurgents.' 3"
Apart from the exceptional circumstances of the Spanish Civil
War, 1936-1939, the right of the established government to assert
belligerent rights against third States may be said to be generally
admitted. How far does this action affect the relations between
third States and the insurgents? The answer given by Oppenheim
and the Institute of International Law, as we have seen,40 is an
unqualified negative. If it be assumed that an unrecognised
insurgent body has no international status, then logically such
an insurgent body can claim no neutral duty from a third State
which has not recognised it. The recognition by the established
government cannot impose a neutral duty on the third State on
behalf of the insurgent body by means of its own action of
recognition.41 Yet, on the other hand, if it be assumed that the
recognition by the established government creates belligerent-
neutral relations between itself and third States, it would be absurd
for third States to be free to disregard neutral duties towards the
insurgents. As war is an armed contention between at least two
parties, one belligerent does not constitute a war.42 Oppenheim
defines ' neutrality ' as ' the attitude of impartiality adopted by
third States towards belligerents and recognised by belligerents '*'
The idea that a third party can be ' neutral ' to one contending
39 Pari. Deb., H.C., 5th ser., vol. 322, col. 1039. This view was adopted in
Tatem v. Gamboa [1939] 1 K.B. 132 (above, p. 371). But see Robson v. Sykes
(1938) 54 T.L.R. 727, p. 347 above. [The so-called Chinese ' blockade ' of 1949
was an attempt by the Chinese Government to close by executive order ports
held by the insurgents, see below, pp. 386-7.]
40 Above, pp. 372-3.
41 See above, pp. 374-5.
12Jessup, loc. cit., n. 1, p. 307 above, p. 273.
13 Oppenheim, vol. II, p. 514.
Modes of Recognition 379
party and not to another is utterly unthinkable. The view that
it is impossible to allow one party to exercise belligerent rights
without granting similar rights to the other has been almost
unanimously held by writers on international law " as well as. in
the practice of States.45 The principle is well expressed by Walker,
who writes :
' If war undoubtedly exists in fact, it (z'.e., the foreign State)
cannot refuse to the parent State the exercise of these rights nor,
if any duty of impartiality exists at all, can it deny to one side
what it allows to the other. . . . War rights come from war,
not from recognition.' "
A few words will suffice regarding the relations between the
established government and the insurgent body which it has
recognised as a belligerent. As between them, the laws of war
between independent States would become applicable.47 But
what if either of the parties refuses to conform to these laws? The
same answer to be given in the case of an international war would
be valid here. The ordinary sanctions of an international war
would be available— namely, reprisals by the enemy and pressure
from the neutrals.
In a civil war, as in an international war, the neutrals have a
great deal, if not quite as much as the belligerents, to do with the
upholding of the laws of war. The failure of one belligerent party
to live up to the prescribed standard of law would affect neutral
interests often too profoundly for them to remain indifferent."
During the American Civil War, the Federal Government
intimated that it would refuse to recognise the competence of the
Confederate Prize Courts. The British Law Officers suggested
"E.g., Twiss, op. cit., s. 239; Bernard, op. cit., p. 116; Rougier, op. cit., pp. 221,
224:5; Brierly, op. cit., n. 17, p. 15 above, p. 127; Webberg, loc. cit., p. 98;
Smith, loc. cit., p. 27; Lauterpacht, p. 201, [although in the latest edition of
Oppenheim, vol. II, 1944, Professor Lauterpacht states that ' qualified
neutrality . . . while dormant in the nineteenth century, never ceased entirely
to form part of the law of nations and was fully resuscitated in the Covenant
of the League of Nations ' (p. 503). The traditional rules of neutrality have
also been affected for members of the United Nations by virtue of their
obligations under the Charter, see Lalive, International Organisation and
Neutrality, 24 B.Y.I.L., 1947, p. 72.]
45 See the numerous instances cited in Lauterpacht, pp. 187-92. See also The
Prize Cases (1862), 2 Black 635, 669.
"Walker, loc. cit., n. 19, p. 312 above, p. 205.
" Rougier, op. cit., p. 223.
48 See Smith, The Law and Custom of the Sea, 1950, p. 76.
380 Recognition of Belligerency and Insurgency
that the neutrals should have a right to insist on the fulfilment of
belligerent duties by the United States. Without reciprocity to
the insurgents, they said, the war activities of the United States,
' instead of being lawful acts, are so many acts of unjustifiable
violence, insult and wrong '. They suggested that a joint declara-
tion should be issued by the neutrals to the effect that they would
refuse belligerent rights to the United States, unless she would
respect the belligerent status of the Confederacy.49
Having thus examined all the three phases of the consequence
of recognition by the established government, we may conveni-
ently summarise the discussions in Hall's words :
' In the second case (i.e., recognition by the established
government) the State puts itself under an obligation to treat its
revolted subjects as enemies and not rebels until hostilities are
ended, and asserts its intention on the ground of the existence
of war to throw upon other countries the duties, and to confer
upon them the rights, of neutrality.' s°
Recognition by third States. Since third States have every-
thing to lose and nothing to gain in a situation of civil war, they
would normally be inclined to resist the exercise of belligerent
rights against them, until they are satisfied of the justice and the
inevitability of the claim. In the absence of an international
court competent to decide upon the matter, a third State, whether
acting upon the concession theory or acting upon the declaratory
theory, would claim to judge for itself the precise moment from
which the contending parties may be allowed to exercise belliger-
ent rights against it. But in so doing, a third State does not act
without restraint. For the rights and duties of neutrality arise
from the fact of war. Conditions which render recognition both
permissible and obligatory have already been discussed.51 A
third State may ignore these at its own peril. Civil war, like any
other form of war, is the result of a situation in which things have
come to such a pass that peoples and nations are prepared to
pay the price of their blood in order to realise some political
ends. Disinterested parties are obliged to choose between taking
" Smith, vol. I, pp. 305-6.
50 Hall, p. 36.
51 Above, p. 364 et seq.
Modes of Recognition 38 1
part, or staying out. If they decide to stay out, they cannot avoid
the consequences of neutrality.
How far does recognition by a foreign State bind the estab-
lished government, other foreign States and the insurgents?
Oppenheim considers recognition by a foreign State as establish-
ing merely the belligerent-neutral relationship between the
insurgent body and the recognising foreign State alone.52 This
is strictly logical, following, as it does, from the idea that recogni-
tion is a concession of pure grace. Even if a third State may
concede belligerent, rights to the established government, it
cannot, under this theory, exact fulfilment of belligerent duties
from it without its consent. In practice, this sort of thing does
not happen. For the remedy lies in the hands of the third State.
If the established government refuses to conform to the laws of
war, the third State may also deny it belligerent rights while
allowing them to the insurgents. The inducements for
the observance of the laws of neutrality are the same as in
an international war. We may again quote Hall in support of
our view :
' In the former case (i.e., recognition by the foreign State) the
effect is to give the belligerent community rights and duties,
identical with those attaching to a State, for the purposes of its
warlike operations, as between it and the country recognising its
belligerent character, and also to compel the State at war with
it to treat the recognising country as a neutral between two
legitimate combatants, unless the good faith of the recognition
can be impugned, when, as a wrong has been committed, the
right accrues to obtain satisfaction by war.' 5S
As to the effect of recognition by a foreign State upon the
relations between the contesting parties, the position is precisely
the same as in the case of recognition by the established govern-
ment. The recognition in either case does not guarantee that the
laws of war will be faithfully observed by both sides. The same
remedy would be available for the same ailment, namely, enemy
retaliation and neutral pressure.
It is believed that recognition by one foreign State does not
affect the relations between other foreign States on the one hand
"Above, p. 375.
53 Hall, p. 36. Accord, Article 7 of the Resolutions of the Institute of Inter-
national Law, 1900 (Scott, op. cit., p. 158).
382 Recognition of Belligerency and Insurgency
and the contesting parties on the other. So long as the States
alone are competent to judge the existence of the fact of war for
themselves, this result is inevitable. If there existed an
international authority competent to declare upon the existence
of a civil war, it would probably not then be free to any
third State to deny the parties of belligerent rights. The idea is
not altogether Utopian, although little practical result has yet
been achieved.54
§ 2. Modes of Recognition
When a State is convinced that a state of war is in fact in
existence, either within its own territory, or within that of another
State, by what outward signs can its appreciation of the fact be
made known to the outside world? In other words, how can its
recognition be effected? The question involves the mode in
which recognition is accorded, and the organ of the State
from which recognition emanates.
As to the question of mode, a distinction has often been made
between express and implied recognition. It is thought by some
writers that, for the sake of clarity, express recognition is pre-
ferred." Another view is that, quite apart from the question of
desirability, express recognition is a more common occurrence.66
On the other hand, there are those who come to exactly the
contrary conclusion that express recognition is rare.57 There are
still others who distinguish between recognition by the established
government and that by third States. It is thought that
51 During the Alabama Arbitration (1872) the American Government brought
up the question of premature recognition, but, owing to British opposition,
it was not included in the term of reference for the tribunal (Moore, Inter-
national Arbitrations, vol. I, pp. 547-53, 562-3; Smith, vol. I, pp. 308-9).
Smith argues that, since the award was based upon the assumption that The
Alabama was a duly commissioned ship of war, it must be inferred that the
tribunal had rejected the American contention {ibid., p. 321).
During the Spanish Civil War, 1936-1939, while there was no formal move
to request the League to decide on the existence of war in Spain (Padelford,
op. cit., chapter IV), the proposal to end non-intervention came very close
to it.
55 See Westlake, op. cit., n. 15, p. 15 above, vol. I, pp. 56-7; Hyde, vol. I, p. 198;
Hershey, op. cit., n. 15, p. 306 above, p. 204; Garner, loc. cit., n. 73, p. 347
above, p. 71; Padelford, loc. cit., n. 82, p. 348 above, pp. 235-6.
56 See President McKinley's message of December 6, 1897 (Moore, Digest, vol. I,
p. 199). See also Secretary Blaine to Attorney-General, March 18, 1889
(ibid., p. 201); Benedict, J., in The Conserva (1889), 38 Fed. Rep. 431, 437
(ibid.).
57 See Oppenheim, vol. II, p. 199; Lauterpacht, p. 177; Smith, loc. cit., n. 4, p. 308
above, pp. 17, 21.
Modes of Recognition 383
recognition by foreign States should be explicit, while recognition
by the established government may be implied.58 There is yet
another view which denies altogether the need of any overt
act to bring about the consequences of recognition. In a note
to the Peruvian Minister, the United States Secretary of State
Cass wrote:
' By what public act, whether proclamation or otherwise, this
recognition must take place I have not found laid down. I am
not aware that in this country any solemn proceeding, either
legislative or executive, has been adopted for the purpose of
declaring the status of an insurrectionary movement abroad, and
whether it is entitled to the attributes of civil war, . . . Whether
a civil war was prevailing in Peru is a question of fact, to be
judged by the proofs, as the existence of a war between two
independent nations is a similar question, to be determined in
the same manner, whereas, as is often the case, at least in this
country, there is no public authoritative recognition of it.' 69
These differences of opinion are due partly to the lack of agree-
ment in the meaning of the words ' express ' and ' implied \ and
partly to the difference in the importance that is attached to the
act of recognition. Generally speaking, to exact a greater degree
of explicitness is more consistent with the concession theory,
which is naturally inclined to make the implication of recognition
more difficult; whereas to regard recognition as the simple
adoption of an attitude of impartiality on the part of third States
and the assumption of belligerent status on the part of the estab-
lished government is more in accord with the declaratory theory.
This difference of view accounts for numerous controversies in
the determination of whether, in a given case, recognition has
been accorded.
We shall now examine the various acts which at one time or
another have been regarded as signifying recognition.
Proclamation of the recognition of belligerency, or proclama-
tion of neutrality. These proclamations give rise to least dispute.
In the strictest sense, they are the only acts which may be said to
amount to ' express recognition \ Proclamations of neutrality
58 Hall, pp. 42-3; Rougier, op. cit., n. 2, p. 97 above, pp. 202, 399.
59 Cass to Osma, May 22, 1858 (Moore, Digest, vol. I, 182-3). See also his letter
to Clay, November 26, 1858 (ibid., p. 183, cited above, p. 342).
384 Recognition of Belligerency and Insurgency
by third States are rare.60 The Act of the United States Congress
of July 13, 1861, is reputedly the unique example of recognition
by the established government by means of a proclamation of
recognition.61
Proclamation of blockade. Majority opinion in both theory
and practice is in favour of the view that a declaration of
blockade by the established government, being an assertion of
belligerent status, may be regarded as recognition of belligerency.
Thus writes Rougier :
' Le blocus, en effet, est un droit belligerant qui suppose
necessairement un etat de guerre; decreter le blocus, c'est pro-
clamer I 'existence d'une guerre. . . .' 62
;
British practice in this matter has been fairly uniform.63 During
the insurrection of St. Domingo against Spain, the British Law
Officers urged that, the Spanish Government having issued a
notification of blockade, ' they virtually asserted, by that very
act, the existence of such a State of War '." In numerous
instances the British Law Officers consistently maintained that
the institution of blockade by the established government against
the insurgents constituted recognition of belligerency.65
A declaration of blockade must not be confused with a decree
60 E.g., the proclamation of June 7, 1821, by the Ionian Senate in connexion with
the Greek rebellion (Smith, vol. I. p. 281); the British (May 13, 1861), French
(June 10, 1861), Spanish (June 17, 1861) and Hawaian {August 26, 1861) pro-
clamations of neutrality during the American Civil War (Bernard, op. cit.,
n. 12, p. 107 above, pp. 135, 144, 147, 149); the proclamation of the United
States during the Texan rebellion against Mexico (Moore, Digest, vol. I, p.
176); recognition of the Cuban rebellion by Peru in 1869 and the recognition
of the Chilean revolt by Bolivia in 1891 (Rougier, op. cit., p. 400). In an
opinion of August 14, 1867, regarding the Cretan insurrection, the British
Law Officers stated that the promulgation of a Proclamation of Neutrality
might be ' a public recognition of the insurgents as Belligerents ' (Smith,
vol. I, p. 265).
61 The Prize Cases (1862), 2 Black 635, 695; Rougier, op. cit.. p. 202. It is
questionable whether this may be considered as an act of recognition, since
the recognition had already taken place at the time of the proclamation of
blockade by President Lincoln, on April 19, 1861.
62 Rougier, op. cit., p. 205. Accord, Wehberg, loc. cit., n. 15, p. 356 above, p 94;
Lauterpacht, p. 199.
63 See Lauterpacht, pp. 178, 194. By an Act of 1776 (16 Geo. Ill, c. 5) England
proclaimed a blockade of the American coasts. Little notice, however, seems
to have been taken of it by the United States in her claim for belligerent
rights.
64 Opinions of August 22, and November 22, 1864 (Smith, vol. 1, pp. 313, 317).
B5 E.g., in the American Civil War (see above, p. 376); in the revolt of Venezuela,
1871 (Lauterpacht, p. 202); in the revolt of Haiti, 1876 [ibid., p. 210) and in the
Carlist War in Spain (ibid., pp. 208-9).
Modes of Recognition 385
of closure, the latter being a municipal decree, without the con-
sequence of recognition.66 A decree of closure cannot be issued
in time of insurrection when the ports in question are in the hands
of the insurgents. The principle is expressed in the often quoted
statement of Lord John Russell in the House of Commons on
June 27, 1861, with reference to the decree of closure of the
Government of New Granada. He said :
' ... it was perfectly competent to the government of a
country in a state of tranquillity to say which ports should be
open to trade, and which should be closed. But in the event of
insurrection or civil war in that country, it was not competent for
its government to close ports which were de facto in the hands
of the insurgents, and that such a proceeding would be an invasion
of the international law relating to blockade.' "
The principle is clear that in time of insurrection a port in
the hands of insurgents cannot be lawfully closed to foreign
commerce except in the exercise of the belligerent right of
blockade. The established government issuing a decree of
closure would find itself in the predicament of having either to
meet the resistance of foreign States or to admit that it is in
exercise of a belligerent right, in which case it would amount to
a recognition of belligerency. It is not clear from the above
quotation whether the prohibition against municipal closure
merely implies that the established government is not permitted
66 For distinctions, see Twiss, op. cit., n. 26, p. 15 above, s. 239.
67 Pari. Deb., 3rd ser., vol. 163, col. 1645. See to the same effect: opinion of
Law Officers, June 25, 1861, concerning blockade of the Confederate coasts
(Lauterpacht, p. 215); opinion of July 16, 1883, concerning the Haitian
revolution (ibid., p. 211); opinion of 1889 concerning the revolution in Peru
{ibid., p. 218); statement by Secretary Bayard to the Minister of Colombia,
April 24, 1885 (Moore, Digest, vol. VII, p. 808); Bayard to Mason, December 20,
1886 (ibid., p. 814); Bayard to Thompson, 1889 (ibid.); Earl of Derby to Lord
Odo Russell, January 17, 1876 (ibid., p. 807); British and German opposition
to decree of President Balmaceda of Chile, April 1, 1891 (ibid., p. 815); view
of Bismark as reflected in North German Gazette (ibid., p. 817); the case of
Cie. Generate des Asphaltes de France (1903), before the British-Venezuelan
Mixed Commission (ibid., p. 820; Ralston, op. cit., n. 92, p. 328 above, p. 331);
Orinoco Asphalt Co. (1903) case before the German-Venezuelan Mixed Com-
mission (Moore, ibid., p. 820; Ralston, op. cit., p. 586); action of the Powers
during the Dominican revolutions of 1903 and 1914 (Hackworth, vol. I, p.
360, vol. VII, p. 127); attitude of the United States during Mexican revolu-
tion, 1912 (ibid., vol. I, pp. 142-3, vol. VII, p. 166); Nicaraguan revolution,
1910 (ibid., vol. VII. p. 127); Haitian revolution, 1914 (ibid.), and Brazilian
revolution, 1932 (ibid., p. 168). Supported in principle in the Oriental Naviga-
tion Co. case (1928) before the United States-Mexican Claims Commission
(Opinions of the Commissioners, 1929, p. 24, 23 A.J.I.L., 1929, p. 434). See
comments in Dickinson, The Closure of Ports in Control of Insurgents, 24
A.J.I.L., 1930, p. 69.
25
386 Recognition of Belligerency and Insurgency
to interfere with foreign shipping on the high seas, of whether
the interference within the territorial waters of the disturbed State
is also disallowed. Reason seems to demand that the latter view
be adopted.68 There are, however, instances in which the more
restricted view has been taken.69 This seems to be the position
taken by the foreign Powers during the Spanish Civil War,
1936-1939.70 But the anomaly in this case is that the established
government was not allowed the choice between limiting its
activities within territorial waters and extending them beyond that
limit by means of establishing a blockade jure gentium. The
argument of the foreign States was that a State cannot close an
insurgent port except by means of an effective blockade,71 but
the belligerency of either party not being recognised, such a
blockade could not be established.72 The position of the powers
was obviously inconsistent with principle and precedent.73
[A similar situation arose during the civil war in China. In
June, 1949, the Chinese Government issued an order closing a
specified region to foreign vessels. This region comprised the
area of coast held by the Chinese insurgents, and as the rebels
secured control of more of the coast the scope of the order was
correspondingly increased. Neither the British nor American
Government would recognise this order as constituting a
blockade, which would have meant the belligerent recognition
of the rebels, nor were they prepared to assist their merchantmen
in running the ' blockade ', although the Royal Navy afforded
protection to British vessels to the limit of territorial waters. This
attitude is easily understood in view of the Chinese action pur-
*8 See the dictum of the U.S.-Mexican Claims Commission in the Oriental
Navigation Co. case (1928), quoted above, p. 345.
69 See the opinions of the British Law Officers, July 1, 1870 (Lauterpacht, p. 216);
September 4, 1866 {ibid., p. 219); August 5, 1869 (ibid., p. 220). In an opinion
of August 13, 1870, concerning the revolt in Venezuela, it was curiously
suggested that the closure must be respected unless the ports ' are not only not
in the Possession, but also not under the Dominion of the Republic ' (ibid., p.
221).
70 This is what Sir Arnold McNair has termed ■ quasi-blockade ' (McNair,
loc. cit., n. 86; p. 349 above, pp. 488-90). See also U.S. Naval War College,
International Law Situation, 1938, pp. 94-96 (Hackworth, vol. VII, pp.
168-9).
71 See Secretary Hull's instructions to United States Embassy at Madrid (Hack-
worth, vol. VII, p. 168).
72 See McNair, loc. cit., pp. 488, 490; Padelford, op. cit., n. 71, p. 346 above,
pp. 10-2; same, loc. cit., n. 82, p. 348 above, p. 231.
73 A feeling of dismay is reflected in the U.S. Naval War College, International
Law Situations, quoted in Hackworth, vol. VII, p. 169.
Modes of Recognition 387
porting to close by executive order ports under insurgent control,
the order having been described by the Chinese ' as enforceable
independently of a declaration of blockade, which has
never been, and is not, under the contemplation of the Chinese
Government \74]
Proclamation of the enforcement of ' neutrality legislation '.
The so-called ' neutrality legislation ' is of three types. The first
type forbids only the rendering of assistance to rebels, while no
restriction is placed upon rendering assistance to the established
government. Because of this inequality of treatment, the enforce-
ment of such legislation does not have the effect of recognition,
and, indeed, it even seems to be a misnomer to call it ' neutrality '
legislation.75 Section 5283 of the Revised Statute of the United
States seems to fall under this head. It prohibits persons from
taking part in hostilities in service ' of any foreign prince or State,
or of any colony, district or people ' against ' the subjects, citizens,
or property of any foreign prince or State, or of any colony,
district or people with whom the United States are at peace '
(italics added). The descriptive words ' with whom the United
States are at peace ' refer only to the party against whom the
hostilities are directed. It is only necessary that the object of
attack be a body with legal status with whom the United States
are at peace; the character of the body in whose service the
71 [The Times, June 20, 25, July 2, August 25, 26, September 13, December
19, 24, 30, 1949. United States Information Service, Daily Wireless Bulletin,
No. 1012, June 26, No. 1019, July 2, 1949; News Chronicle, July 7, Glasgow
Herald, July 18, 1949. In November, 1949, the Chinese Nationalist Govern-
ment announced its intent to bomb neutral merchant ships in Chinese
territorial waters making for Communist-held ports. The British Govern-
ment warned the Chinese Government that it would regard any such attack
as illegitimate and unfriendly, and that it would hold the Chinese Government
responsible for the consequences (The Times, November 5, 1949). Similarly,
when an American vessel was shelled near the mouth of the Yangtze the
State Department protested to the Nationalists (The Times, November 17,
1949), but when it was announced that the Nationalists had mined the
approaches to Communist-held ports, the mines having been laid in terri-
torial waters, the State Department warned the masters of American ships
that they might lose their licences if they tried to run the ' blockade ' (The
Times, December 24, 30, 1949).]
" Such a law may be applied to cases where both contesting parties are States
or recognised belligerents, or where only the object of hostilities is a State
or a recognised belligerent. In the latter case, as the protection is given to
one side only, there is, and can be no ' neutrality '. See communication from
Secretary Bayard to the Spanish Minister, July 31, 1885 (U.S. For. Rel., 1885,
p. 776; Dumbauld, Neutrality Laws of the United States, 31 A.J.I.L., 1937,
p. 258, at p. 260). See also below, p. 401.
388 Recognition of Belligerency and Insurgency
accused is employed is immaterial.76 This view is fully borne out
by the judgment in The Three Friends (1897), in which Fuller
C.J. said, ' If the necessity of recognition in respect of the objects
of hostilities, by sea or land, were conceded, that would not
involve the concession of such necessity in respect of those for
whose service the vessel is fitted out.' "
In the case of The Lucy H. (1915) 78 an American schooner
was charged with a violation of Section 23 of the Penal Code of
1910 79 under a provision substantially the same as above. It was
argued by the defendant that the regime against which the vessel
was to be employed was an insurrectionary force, falling short
of the description of ' foreign prince or State, or . . . any colony,
district or people with whom the United States are at peace '.
The defence was, however, overruled. The court seems to have
relied, wrongly, upon the Supreme Court decisions in Wiborg v.
U.S. (1896) and The Three Friends (1897), because in these two
cases the question only involved the status of the party in whose
service the accused was employed. There was no decision on
the question whether it was necessary that the object of hostilities
should possess international status. This necessity of discrimina-
tion between the two parties is evident from the dictum of Fuller
C.J., quoted above.
The second type of legislation is one which is applicable to a
case in which both the contesting parties are States or recognised
belligerents. The application of such legislation to an entity pre-
supposes the legal status of that body. To this type belongs the
American Neutrality Act of 1794.80 In Gelston v. Hoyt (1818) "
it was held by the United States Supreme Court that, since neither
78 The words ' or of any colony, district or people ' were inserted in the original
law of June 5, 1794, by the Act of 1817, carried forward by the Act of 1818
and so into Section 5283. The addition was effected as the result of the
request of the Portuguese Minister, so as to make it applicable to cases of
insurrection in which the belligerency of the insurgents is not recognised {The
Three Friends (1897), 166 U.S. 1, 53). For the text of Act of 1818, see
Phillimore, op. cit., n. 21, p. 15 above, vol. I, p. 667.
77 At p. 63, see similar view in Bayard's communication, above, r. 75.
See also Wiborg v. U.S. (1896), 163 U.S. 632; and Gayon v. McCarthy (1920),
252 U.S. 171. Noel-Henry, op. cit., n. 29, p. 139 above, s. 110) thinks that the
decision of the U.S. Supreme Court in U.S. v. Palmer (1818), 3 Wheat. 610
also supports this view. However, in this case the Neutrality Act was not in
issue. The recognition of belligerency by the Government had decided the
question of the status of the insurgents (at p. 635).
78 (1915) 235 Fed. 610, N.D. Fla.; Hackworth, vol. I, pp. 358-9.
" 35 Stat. 1090; 18 U.S.C., s. 23.
,0 See above, n. 76.
"(1818)3 Wheat. 246.
Modes of Recognition 389
faction in St. Domingo was judicially recognisable as ' any foreign
prince or State \ Ch. 50, s.3, of the Act was not applicable to the
case.82
The third type is one which is applicable to a case in which
neither of the contesting parties need be a State or a recognised
belligerent. An example may be found in the British Foreign
Enlistment Act of 1819,83 which was later replaced by the Act
of 1870.8* Such laws are broad enough to cover any case of
participation in hostile activities by British subjects either for or
against bodies who may have no international status. The Act
of 1819 was applied to a ship in the service of the unrecognised
Cuban insurgents,85 and the Act of 1870 was applied to a raiding
party on the territory of a foreign State.86 The application of
these laws does not presuppose the recognition of belligerency.
However, there are two points which may place doubts upon
such a conclusion. First, with regard to the Act of 1870, what
should be the interpretation of the words ' at war ' and ' at
peace '? Can Her Majesty be * at peace ' with someone who does
not possess a legal entity? The Judicial Committee of the Privy
Council ingeniously suggested that ' at peace ' means ' not at
war '."
But what about the term ' at war '? If there is a ' war '
between the contesting parties which is recognisable by the court,
then the parties would, for that very reason, be recognised
belligerents. The question has therefore been raised whether, by
proclaiming the enforcement of the Act, the British Government
had not recognised the Civil War in Spain on January 10, 1937.8'
83 At p. 324. See comments in Jaffe, op. cit., n. 21, p. 15 above, pp. 135-7.
83 59 Geo. 3, c. 69. It is provided in the Preamble that no British subject may
without His Majesty's licence take part in ' warlike operations in or against
the Dominions or territories of any Foreign Prince, State, Potentate, or
Persons exercising or assuming to exercise the Powers of Government in or
over any Foreign Country, Colony, Province, or Part of any Province, or
against Ships, Goods, or Merchandise of any Foreign Prince. State, Potentate,
or Persons as aforesaid, or their subject '.
84 33 and 34 Vict., c. 90. Sections 4 and 5 provide for penalties for persons
participating in a foreign strife in the service, of ' any foreign State at war
with any foreign State at peace with Her Majesty '. By the interpretation
clause in s. 30, these provisions are made to cover the same matters as the
Act of 1819.
85 The Salvador (1870), L.R. 3 P.C. 218, 233.
"Reg. v. Jameson [1896] 2 Q.B. 425.
87 The Salvador, at p. 230.
88 Sir Arnold McNair argues that the ' war ' may be proved by evidence, in the
absence of recognition (McNair, loc. cit., pp. 495-6). But this begs the question
whether such a 'war' is a war in the legal sense.
390 Recognition of Belligerency and Insurgency
The second point is that the British Acts contain an element
of impartiality, which is the essence of neutrality. By treating
the established government on an equal footing with the rebels, a
third State would be in fact assuming a duty of neutrality. In
1867, the British Law Officers were of opinion that a proclama-
tion invoking the Act of 1819 would amount to a public recogni-
tion of the belligerency of the Cretan insurgents.8" Even though
the British Proclamation of June 6, 1828, was deliberately worded
so vaguely as not to mention any particular civil strife,80 it was
held by some authorities that the Greek insurgents were thereby
recognised.91
This element of impartiality is also found in numerous legisla-
tive acts of the United States, such as the Joint Resolution of
Congress, January 8, 1937, prohibiting the export of arms to
Spain,92 the Neutrality Act of May 1, 1937 93 and the proclama-
tions issued thereunder.91 In cases where the legislation empowers
the executive to use discretion in the application of the law, such
as in the Joint Resolution of Congress, March 14, 1912,95 it would
seem that, until equal treatment is accorded, no recognition can
be attributable to the application of such legislation.96
Apart from this last-mentioned circumstance, it is debatable
whether, by declaring the enforcement of ' neutrality ' legislation
which provides for an attitude of impartiality, a third State does
not impliedly admit the existence of two equal belligerents.97
89 Opinion of August 14, 1867 (Smith, vol. I, p. 262).
90 See ibid., p. 288.
91 See Canning to Lord Strangford, July 12, 1823 {ibid., p. 289); the opinion of
Lushington (ibid., p. 297); the view of Smith (ibid., p. 297); contra, Lauter-
pacht, p. 178. See, however, De Wiitz v. Hendricks (1824), 2 Bing. 314, in
which the right of Greek insurgents to raise loans in England was denied.
Best C.J. said that no right of action could arise out of ' engagements to
raise money to support the subjects of a government in amity with our own, in
hpstilities against their government' (at p. 316). The effect of the British
Proclamation of June 6, 1823, was apparently ignored.
92 31 A.J.I.L., 1937, Supplement, p. 102.
" Ibid., p. 147.
91 E.g., the Proclamation of May 1, 1937 (ibid., p. 156).
" Hackworth, vol. I, p. 356.
*' See the case of the Brazilian revolution, where the embargo was applied to the
insurgents alone (Hackworth, vol. I, pp. 325-6). See also Dumbauld,
Neutrality Laws in the United States, 31 A.J.I.L., 1937, p. 258, at p. 265;
Borchard, Neutrality and Civil War, ibid., p. 304, at p. 305.
97 For the view that it does not imply recognition, see Hackworth, vol. I, p. 356;
Lauterpacht, pp. 178, 235 (but at p. 235 it is admitted that the application
of neutrality legislation by the United States during the Cuban War ' secured
the operation of one of the principal consequences of recognition of
belligerency ').
Modes of Recognition 391
Assertion of belligerent status by the established government
or the submission to such assertions by foreign States. Where
an established government, without formal declaration, proceeds
to exercise belligerent rights, and a foreign State, with equal
taciturnity, proceeds to submit to the exercise of such rights, can
recognition of belligerency be presumed to have taken place?
The question is an extremely difficult one, for these acts are
gradual, unspectacular, and often individually inconclusive. For
example, during the Spanish American revolt, the British naval
officers were first instructed to ' accept explanations for the
irregularities ' of the insurgents and to respect ' local regula-
tions V8 By August, 1818, captures by Buenos Aires privateers
began to be treated as ' the case of a Prize of War between two
belligerents '.'" During the Greek rebellion, the insurgents were
at first permitted to board British vessels, though no blockade was
yet recognised.1 By January, 1823, the British navy withdrew
its protection from merchantmen attempting to force the
blockade.2 During the Chilean revolution, 1891, the British
Government, besides admitting the right of insurgents to establish
a blockade, also submitted to the interception of contraband and
the collection of duties by them.3 During the Spanish Civil War
of 1936-1939, the British Government on various occasions warned
British ships from proceeding to ports ' blockaded ' by the con-
testing parties.4
In cases like these, it is often not easy to say whether recogni-
tion has taken place, or to determine the precise moment at which
it did take place."
Acts of foreign States implying the existence of the personality
of the insurgent community. Acts presupposing the legal per-
sonality of the insurgent body have been regarded by some writers
98 Hamilton to Croker, January 3, 1815 (Smith, vol. 1, p. 267).
"Opinion of Robinson, August 11, 1818 (ibid., p. 275).
1 Moore to Croker, July 23, 1822 {ibid., p. 286).
2 Same to same, January 27, 1823 (ibid., p. 287).
3 Moore, Digest, vol. H, s. 333, vol. VII, s. 1268.
4 See the statement of Sir John Simon in the House of Commons, April 14,
1937 (Pari. Deb., H.C., 5th ser., vol. 322, col. 1039). [See also American
reaction to Nationalist mining of Chinese territorial waters. The Times,
December 24, 30, 1949, and n. 74 above.]
5 For example, according to Beale, the Spanish-American revolution was recog-
nised by Britain on November 27, 1817, the Greek revolution on September
30, 1825 (Beale, loc. cit., n. 2, p. 364 above, p. 406): according to Smith, the
dates were, February 21, 1823, and June 6, 1823, respectively (Smith, vol. I,
pp. 279, 288). See also Lauterpacht, p. 182, n. 1.
392 Recognition of Belligerency and Insurgency
as implying the existence of war.6 Such acts may include the
conclusion of international conventions with the insurgents,7 the
recognition of official acts of the insurgents,8 the recognition of
the insurgent flag,9 the admission of insurgent ships into port,10
and other semi-official intercourse with the insurgents.11 Such
acts are so varied and their implications depend so much upon the
circumstances of the case, that it is difficult to lay down a general
rule as to whether they imply recognition, although they certainly
raise a strong presumption of it.
Commercia belli between the contesting parties. How far acts
in the nature of commercia belli imply recognition is again a moot
question. Hall and G. F. von Martens 12 think that no recogni-
tion is implied. Rougier maintains that such acts when done in
series and with the approval of the government may be considered
as constituting recognition, but this does not include acts done
for humanitarian reasons.13 This latter exception was particularly
endorsed by the Institute of International Law."
The argument that commercia belli imply recognition was
vigorously advanced by Wheaton. He maintained that Great
Britain, through the exercise of commercia belli, had conceded
belligerent rights to her American Colonies.15 The view was
adopted by the United States Supreme Court in U.S. v. Pacific
Railroad (1887).1'
6 Rougier, op. cit., n. 2, p. 97 above, p. 210.
7 Ibid. The British Government, however, denied that the conclusion of a
commercial agreement with the Spanish Nationalists in February, 1937, con-
stituted a recognition of their belligerency (Smith, loc. cit., n. 4, p. 308 above,
p. 28).
8 E.g., the recognition of the Nationalists' visas by the Tangier Committee in
1936 (ibid., p. 26).
9 See Lorimer, op. cit., n. 19, p. 15 above, vol. I, p. 151. See, however, the
contrary view of the United States concerning the recognition of Cuba by
Mexico (Davis to Phelps, October 14, 1869, Moore, Digest, vol. I, p. 194).
10 For the treatment of ships of the Spanish-American Provinces, see Dallos to
Duplessis, July 3, 1815 (Moore, ibid., p. 170). For the treatment of Con-
federate ships in Russia, Prussia and Cuba, see 51 B.F.S.P., 1860-1, p. 99;
Moore, Digest, vol. I, p. 169; Bernard, op. cit., n. 12, p. 107 above, pp. 248-9.
For the treatment of Texan ships in the United States, see Moore, Digest,
vol. I, pp. 176-7. For the view that the admission of insurgent ships does
not constitute recognition, see Lauterpacht, p. 181.
11 E.g., the visit and reception of the insurgent leaders, as in the case of the
reception of Garibaldi by British officials (Smith, vol. I, p. 300).
12 Hall, p. 43; G. F. de Martens, Pricis de Droit des Gens, vol. II, p. 207, n.d.
18 Rougier, op. cit., pp. 202-10.
14 Article 4 (2), Resolutions of 1900 (Scott, op. cit., n. 9, p. 335 above, p. 158).
15 Wheaton to Secretary Upshur, August 23, 1843 (Moore, Digest, vol. I, p. 168).
16 (1887) 120 U.S. 227, 233.
Modes of Recognition 393
The above analysis seems to show that, apart from express
declarations, all other modes of recognition contain some
elements of uncertainty. Acts which have often been considered
by a State as amounting to acts of recognition, have at other times
not been so considered by the same State. Or different States and
different writers may find themselves- holding diametrically
opposing views concerning the same act. Is there any objective
standard by which acts may be tested for their significance with
respect to the question of recognition? It has been suggested
that, to constitute recognition, the intention of the recognising
State should be taken as the determinant.17 But unless recogni-
tion is confined to express declarations, the question still remains :
what acts are sufficiently indicative of such intention?
A test for the recognition by the established government is
suggested by Hall as follows : ' . . . the performance of acts of
such kind as those the expectation of which justifies recognition
by a foreign State, should alone be held to imply recognition by
the parent State.' 1S But what is the act of the established
government which justifies recognition by foreign States? This
is to beg the question. For the act of the established government
which justifies recognition by foreign States must necessarily be
itself an act of recognition. It is not the single act of the State
which is important; rather, all material elements must be taken
into consideration. If there is in reality a war, any act which
corroborates this fact can be entered as evidence. A dictum of
Fuller C.J. in Underhill v. Hernandez (1897) is in point:
' And where the fact of the existence of war is in issue in the
instance of complaint of acts committed within foreign territory,
it is not an absolute prerequisite that that fact should be made
out by an acknowledgment of belligerency, as oflier official
recognition of its existence may be sufficient proof thereof." "
§ 3. Which Organ of the State is Competent to
Accord Recognition?
In order to determine whether an act is an act of recognition, it
may be necessary to subject it to a procedural test. In con-
17 See Hall, p. 42; Article 4 (1) of the Resolution of the Institute of International
Law, 1900 (Scott, op. cit., p. 158); Padelford, loc. cit., n. 82, p. 348 above,
p. 236.
19 Hall, p. 43.
"(1897) 168 U.S. 250, 253.
394 Recognition of Belligerency and Insurgency
sequence of the belief that an act of recognition entitles the State
to certain rights and imposes certain duties, it is necessary that
such an act emanate from the organs which are in a. position
to bind the State.
This question has been considered in connexion with the
recognition of States and governments 20 and the arguments and
conclusions there maintained are generally applicable here.
However, there is one point which has special reference to the
recognition of belligerency and may be brought up in this
connexion.
Although recognition in general is concerned with foreign
relations, the recognition of belligerency in the State's own terri-
tory may be a question not entirely within the province of foreign
relations. In The Prize Cases U862),21 in which the issue was
whether the executive or the legislature should have the power
to recognise the belligerency of the Confederacy, neither side
advanced the argument that it was a matter of foreign relations.
The point of disagreement was whether, under the Constitution,
the President in his capacity as the Commander-in-Chief of the
Army and Navy had power by a war measure to transform a
portion of the citizens into a public enemy.
The dissenting opinion of Nelson J. maintains that the power
to make war, whether foreign or internal, resides with Congress.22
The majority opinion, however, held that, although the Congress
alone has power to declare war, the President has power to make
war. A civil war can exist without a declaration by Congress.
It is within the power of the President as the Commander-in-Chief
to accord to the rebels the character of belligerency and the court
is bound by his decision."
20 Above, Part Four, Chapter 15.
21 2 Black 635.
"At p. 690.
23 At p. 670. See also Williams v. Bruffy (1877), 96 U.S. 176, 189.
CHAPTER 25
TERMINATION OF BELLIGERENCY
The termination of war alone terminates the condition of
belligerency. Once a situation ceases to be a war there is no
longer any ground for any party to insist upon continuing the
relations incident, and incident only, to a state of war. Upon the
surrender of the Confederate generals in April, 1865, the British
Government was urged by the Law Officers to put an end to the
war-time relations.
'The true rule of conduct,' they said, 'appears to us to be,
that the Neutral State should acknowledge as promptly and as
completely as the obligations of good faith towards the defeated
belligerent will permit, the fact, with all its consequences, that the
war is at an end, and that the victorious belligerent now represents
the only power within the limits of the Union, which Her Majesty
can any longer treat as entitled to international recognition, either
for the purposes of war, or otherwise. . . .' 1
On the 2nd June Great Britain acknowledged the termination
of the war. On the 23rd June the blockade was raised by a
proclamation of the President, and in October the normal rela-
tions of peace were fully restored.2
This is a simple case where fact and law coincide. The
situation presents a greater difficulty when the question is whether
recognition can be revoked by the recognising State before the
war has in fact come to an end. If recognition is a ' concession
of pure grace ' and an act of unfettered discretion, it would
logically follow that revocation is permissible. This is the view
of the Institute of International Law.3
Both a theoretical and a practical objection may be raised
to such a theory.
In theory, it is doubtful whether it is in the nature of the act
1 Opinion of May 20, 1865 (Smith, vol. I, p. 324).
2 Ibid., pp. 324-5; Moore, Digest, vol. I, pp. 187-8. The Spanish neutrality
decree was similarly annulled (Moore, ibid., p. 188).
3 Article 9, Resolution of 1900 (Scott, op. cit., n. 9, p. 335 above, p. 159).
395
396 Recognition of Belligerency and Insurgency
of recognition itself to be capable of revocation. If recognition
is regarded as a mere declaration of fact, the impossibility of
revocation is plain.1 But even assuming recognition as an act
of investiture, is it possible to divest the insurgents of the status
of belligerency once they have been so invested? Assuming, for
the sake of argument, that recognition creates rights at all, it
creates rights in rem, and after setting up a permanent state of
things, it passes away into a historical fact. A revocation of
recognition does not obliterate ipso facto all the consequences of
recognition. ' If a treaty stipulates for the cession of territory
or the recognition of a new State ', writes Hall, ' the act of cession
or of recognition is no doubt complete in itself. . . .' 5
The second objection to the revocation theory is that it is
impracticable. If the revoking State is the established govern-
ment, such a revocation merely means that it gives up at its own
convenience the rights of war, while it cannot compel neutrals
to deny those also to the insurgents. If revocation is by a foreign
State, it would mean either that it would resist impartially the
exercise of belligerent rights by both belligerents or that it would
take the side of one party. In the former case, it never ceases
to be neutral : it merely makes neutrality more burdensome than
following the well-regulated path of ordinary neutrality.
Hall, although in principle in agreement with the theory of
the irrevocability of recognition, however, expresses his views in
such a way that they are not entirely free from objection. Thus
he writes :
' Recognition of belligerency, when once it has been accorded,
is irrevocable,6 except by agreement, so long as the circumstances
exist under which it was granted; for although as between the
grantor and the grantee it is a concession of pure grace, and
therefore revocable, as between the grantor and third parties
new legal relations have been set up by it, which being dependent
on the existence of a state of war, cannot be determined at will
so long as the state of war continues in fact.' 7
To this view two criticisms may be offered. First, it is doubt-
ful how revocation can be effected by agreement. Agreement
1 See above, p. 259.
» Hall, p. 404.
• This part of the sentence is quoted with approval by Westlake (op. cit., n. 15,
p. 15 above, vol. I, p. 57).
7 Hall, p. 42. Also Rougier, op. cit., n. 2, p. 97 above, pp. 216, 396-7.
Termination of Belligerency 397
with the insurgents would be out of the question. An agreement
between the established government and a third State to deprive
the insurgents of their belligerent rights would ipso facto be a
participation of the third State on the side of the government.
Secondly, Hall seems to regard the effect on the interests of the
third parties, other than the insurgent body, as the sole obstacle
to an unilateral revocation. He seems to treat recognition as a
bargain between the grantor and those third parties, a bargain
which had to be stuck to, even if it turned out to be unfavourable.
This theory is based solely upon the assumption that the applica-
tion of the laws of war is exclusively for the benefit of the grantor,
and ignores the larger setting which makes the application of such
laws a necessity. The reasons which impel a recognition of
belligerency are the same as those which necessitate the continua-
tion of legal relations thus established. The international law
of war is observed because it regulates most equitably the relations;
of all parties concerned, and not for the special advantage of any
particular party. As long as war exists, this law would continue
to provide the basis for legal relations between the parties. It
would not be justifiable for any party to terminate such relations
while the conditions of fact remain unchanged.
CHAPTER 26
RECOGNITION OF INSURGENCY
The term ' insurgency ' is used in the technical sense to denote
the condition of political revolt in a country in which the rebel-
lious party has not attained the character of a belligerent
community. It is an intermediate stage between a state of
tranquillity and a state of civil war.1 The existence of armed
contention is the same as in a civil war, but, for the lack of one
or more of other essential qualities, insurgency is a condition
which is in fact, and therefore in law, falling short of a state of
civil war.2
It has been held by some writers that the difference between
insurgency and belligerency lies purely in the question of
recognition. To them, belligerency is recognised insurgency. It
is thought that without recognition insurgency is a * war in the
material sense ' in contrast to a ' war in the legal sense ' in the
case of belligerency. Thus, Wilson maintains that ' war in the
full sense, according to international law, can exist only by
declaration or recognition of belligerency by a State ', although,
failing such a declaration, ' an armed contest may, nevertheless,
exist and of this fact others must often take notice '.3 Likewise,
Hyde argues that, while the recognition of belligerency serves to
clothe each of the parties with rights of war, the recognition of
insurgency ' does not strengthen the legal position already attained
1 Moore, Digest, vol. I, p. 242. Distinctions have been made between various
degrees of civil disturbance. See Articles 149-51 of the Instructions for the
Government of Armies of the United States in the Field, General Orders,
April 24, 1863 (Moore, Digest, vol. II, p. 159); Woolsey, op. cit., n. 2, p. 105
above, p. 240; Hyde, vol. II, p. 1692; Jessup, loc. cit., n. 1, p. 307 above, p. 270.
But except for the distinction between belligerency and insurgency, the dis-
tinctions between other grades of violence are not entirely clear. See the
Vinson Case (1928), decided by the French-Mexican Mixed Claims Commis-
sion, in which the distinctions were completely disregarded (39 R.G.D.I.P.,
1932, p. 230; Green, op. cit., n. 7, p. 141 above, No. 183).
"Thus, the Cuban rebellion of 1868 and the Brazilian Naval Revolt of 1893
did not advance beyond the stage of insurgency, because of the lack of a
regular political organisation. See Moore, Digest, vol. I, p. 194, vol. II,
p. 1115. The Brazilian insurgents also lacked land forces (Lauterpacht, p.
176, n. 2).
3 Wilson, loc. cit., n. 1, p. 370 above, p. 46.
398
Recognition of Insurgency 399
by the insurgents; ... it does not impose upon the outside State
the technical burdens of a neutral '.' The same idea occurs to
Beale who says that a situation of insurgency may exist where
' belligerency may in fact exist; but a State may not wish or need
to recognise it '. It may, however, be necessary to recognise the
existence of hostilities. ' Such a recognition is of insurgency, not
of belligerency.' 5
Although in these quotations the importance of the formula
of ' recognition '.is unduly exaggerated, it is nevertheless true that
there may exist a stage of civil conflict in which the international
law of war does not fully apply. We have maintained previously "
that the status of belligerency is the outcome of the existence of
civil war, and not of recognition. The difference between
belligerency and insurgency is one of fact. If the fact is one of
civil war, the lack of recognition alone does not justify the denial
of belligerent rights to the parties. There is no such magic
power in the word ' recognition '. For this reason, ' recognition '
of insurgency does not create any special status for the parties
concerned.7 To speak of the ' recognition ' of insurgency is to
use the word in its plain meaning, that of acknowledging the fact
of insurrection. The question arises only as to the most appro-
priate way of dealing with such a situation of fact.,
When a situation of insurgency exists it may be necessary for a
foreign State to take measures of precaution, so as to be insured
against blame. It may be necessary to enforce certain domestic
laws to prevent its territory from being used as a base of hostilities
against the established government and to prevent its nationals
from taking part in them; it may have to relax its rights
against the rebels and their ships and treat them with some
'Hyde, vol. I, p. 203.
5 Beale, loc. cit., n. 2, p. 364 above, p. 406, n. 1.
6 Above, p. 350.
7 The view has been held by some writers that the ' recognition of insurgency '
is an intermediate grade of ' recognition ', which creates international status.
Thus, see Oppenheim, vol. I, p. 135; Fauchille, op. cit., n. 24, p. 15 above, vol
I, Pt.I, s. 199(2); Wehberg, loc. cit., n. 15, p. 356 above, pp. 101-2. The contrary
view is held by Lauterpacht, who observes : ' It is therefore only by way of
description and not of inexhaustive definition of a status that writers speak of
recognition of insurgency ' (p. 276, n. 4). Similarly, Wilson, loc. cit., pp. 59-60.
As there is no clear line of demarcation between the condition of ' insurgency '
and other less serious situations of civil strife, it is obviously impossible to
attach the former with any definite legal consequences. Wilson suggests that
the term ' admission of insurgency ' should be used instead of ' recognition of
insurgency' (U.S. Naval War College, International Law Situations, 1912,
P- 19).
400 Recognition of Belligerency and Insurgency
measure of leniency. As these are not strict duties of
international law,8 they vary in measure and extent, although the
practice of States has to some extent crystallised as regards certain
of these matters.9
' Recognition ' of insurgency is therefore in essence a domestic
proclamation, drawing the attention of the public to a state of
fact in a foreign State which calls for special caution.10 The
United States furnishes the greatest number of examples of such
recognition. During the First Cuban Rebellion President Grant
repeatedly declared the existence of hostilities, although they did
not amount to a state of civil war.11 The insurgency of the
Colombian revolt of 1885 12 and the Haitian insurrection of 1888 ls
were also recognised by the United States.
The recognition of the Cuban insurrection of 1895-1898 by the
United States was considered by Moore to be ' the clearest
recognition of the state of insurgency or revolt as a distinctive
condition '." On June 12, 1895, the President of the United
States declared that Cuba was ' the seat of civil disturbances,
accompanied by armed resistance to the authority of the estab-
lished government of Spain ', and reminded American citizens
of the provisions of the neutrality laws.15 This fact was men-
tioned again in his Annual Message of December 2, 1895,16 the
Proclamation of July 27, 1896, and his Annual Message of
December 7, 1896." Upon the basis of these proclamations, the
United States Supreme Court held that Section 5283 of the
Revised Statute should apply. For the first time, the Court made
the distinction between the ' recognition of the existence of war
in the material sense and of war in a legal sense \"
8 Lauterpacht, p. 276. There seems to be one consequence of the fact of
insurgency of which international law takes cognizance, namely, that the
occupation of a port by insurgents prevents the established government from
proclaiming a closure of that port. See Oppenheim, vol. I, p. 136; also above,
pp. 385-6. [See also discussion on case of Oriental Navigation Co. (1928), in
Schwarzenberger, op. cit., n. 55, p. 22 above, pp. 367-9.]
9 See below, p. 401.
10 Wilson, loc. cit., pp. 59-60.
11 Messages of December 6, 1869 (Moore, Digest, vol. I, p. 194) and December 7,
1875 (ibid., p. 196).
12 See Wharton, loc. cit., n. 7, p. 335 above, p. 125 (Moore, Digest, vol. II,
p. 1100).
13 President Cleveland, Message of December 3, 1888 (ibid., vol. VII, p. 1080).
11 Ibid., vol. I, p. 242.
15 Ibid.
16 Ibid., p. 198.
17 Ibid.
"The Three Friends (1877), 166 U.S. 1, 63-6.
Recognition of Insurgency 401
When the condition of insurgency is acknowledged, a foreign
State generally takes certain measures or assumes a certain
attitude regarding the following matters :
Precautionary measures to prevent its territory from being
used as a base for hostile activities against the established
government. No doubt, the duty to respect the territorial
sovereignty of a friendly State is a duty which exists in time of
tranquillity as well as in time of civil strife.19 Neither the fact
of the insurrection nor the admission of it enlarges the inter-
national obligations of foreign States.20 Yet it is also true that
the existence of a condition of civil strife makes the performance
of that duty more burdensome. In some countries, it is necessary
to invoke the aid of municipal legislation designed for that
purpose. With the exception of the Act of 1794 of the United
States, the so-called ' neutrality legislation ' of Great Britain and
the United States is applicable to a case of insurgency. At
least, when applied to a case in which the offence is rendering
service to the insurgents it is not necessary that their belligerent
status be presupposed. This is particularly true with regard to
Section 5283 of the United States Revised Statute. In United
States v. Trumbull (1891),31 concerning the application of that law
to a vessel fitted out in the service of the unrecognised Congres-
sionist insurgents in Chile, it was held that the law required
impartial treatment to both sides, because the section was found
in the Chapter entitled ' Neutrality '. This view has been opposed
by most authorities.22 It was definitely rejected in The Three
Friends (1897), in which it was held:
' . . . the maintenance unbroken of peaceful relations between
18 Although the Institute of International Law especially provides for this duty
(Article 2 (3), Resolution of 1900, Scott, op. cit., n. 9, p. 335 above, p. 157)
with regard to a situation of civil strife, it does not necessarily mean that
the duty does not exist in peacetime. [It should not be forgotten that Members
of the United Nations have undertaken to ' refrain in their international
relations from the threat or use of force against the territorial integrity or
political independence of any State ' (Charter Article 2 (4)). Article 4 of the
Draft Declaration of the Rights and Duties of States adopted by the Inter-
national Law Commission declares that 'every State has the duty . . to
prevent the organisation within its territory of activities calculated to foment
civil strife ' in another's territory (7 United Nations Bulletin, 1949, p. 15).]
20 Wilson, loc. cit., pp. 59-60; Hyde, vol. H, p. 2333.
21 48 Fed. Rep. 99 (Moore, Digest, vol. VII, pp. 1080-1).
22 See above, p. 387. See also Opinions of Attorneys-General Hoar (Moore,
Digest, vol. VII, p. 1079) and Harmon (ibid., p. 1081) and the observation
by Moore (ibid., pp. 1080-1).
402 Recognition of Belligerency and Insurgency
two powers when the domestic peace of one of them is dis-
turbed, is not neutrality in the sense in which the word is used
when the disturbance has acquired such head as to have demanded
the recognition of belligerency. And, as mere matter of
municipal administration, no nation can permit unauthorised
acts of war within its territory in infraction of its sovereignty,
while good faith towards friendly nations requires their
prevention.' 23
The action of the United States has been consistently guided
by this principle. The prohibition has been enforced only against
aid to insurgents. Thus it was decided that ships of the Haitian
Government, then fighting against insurrection, might be refitted
In the United States, and that their supplies and ammunition ought
not to be interfered with,24 and that contracts with the Colombian
Government in time of civil strife constituted no contravention
of the neutrality statute.25 But the furnishing of arms to Indians
in insurrection against Mexico was considered a violation of that
statute.26 In cases, however, where there are more than two
factions in a civil strife, and none of them is the established
government, it is believed that the ' neutrality laws ', if applicable,
should operate equally on all parties.27
Presumption of non-piratical character of insurgent vessels.
Since an insurgent body is not a subject of international law its
ships cannot acquire the status of regularly commissioned vessels
recognisable by foreign States. Strictly speaking, therefore, they
can claim no protection under international law from being
treated as pirates by foreign States. It is probably on this strictly
legal ground that Secretary Fish of the United States wrote, with
reference to the Haitian insurgent ships, that ' We may, or may
not, at our option, as justice or policy may require, treat them as
pirates in the absolute and unqualified sense '.28 Under normal
circumstances, if insurgent ships commit no depredation against
23 166 U.S. 1, 52.
24 Seward, to Wheelwright, September 15, 1868 (Moore, Digest, vol. VII, pp.
1076-7).
25 Bayard to Gibbons, July 3, 1885 {ibid., p. 1079).
26 Gandara v. U.S. (1929), 33 F. (2d) 394, Circuit Court of Appeals (9th Circuit).
Also Wiborg v. U.S. (1896) 163, U.S. 632, 647; (1897) The Three Friends, 166,
U.S. 1.
27 President Cleveland, Message of December 3, 1888 (Moore, Digest, vol. VII,
p. 1080).
28 Fish to Bassett, September 14, 1869, with reference to the revolt in Haiti
(ibid., vol. II, pp. 1085-6).
Recognition of Insurgency 403
foreign ships, neither justice nor policy would require this un-
mitigated assertion of right. The case of United States v. Smith
(1820) 2° is cited by Westlake as an example of the existence of
such a right. But the facts of this case do not bear this out.
Although the prisoner was a member of the crew of a vessel com-
missioned by the insurgent government of Buenos Aires, he had
mutinied and was not in fact acting on behalf of the insurgent
body. The court rightly treated the case as one of common
robbery and did not make any ruling as regards the status of
insurgent ships as such.
The case of The Ambrose Light (1885) 30 is a more precise
example. The judgment was, however, subjected to such devastat-
ing criticisms 31 that it does not seem to have been followed in
later decisions.32 As a matter of fact, at the time of the trial
Secretary of State Bayard was strongly against the capture. He
declared that ' no prize court of the United States could
legitimatise the taking of one of the so-called piratical insurgent
vessels of Colombia ' and that the American Commander taking
the ship would be ' directly intervening in the domestic strife in
Colombia, which would be unauthorised '. He cited the case of
The Friederich-Karl in which a similar act by a German cruiser
was disavowed by the German Government.33 On a subsequent
occasion he pointed out that the capture was contrary to the
opinion of Nelson J. in United States v. Baker (1861),34 in which
it was held that depredation upon one nation exclusively does not
constitute piracy.35 In his Annual Message of December 8, 1885,
President Cleveland emphatically declared that insurgent vessels
could not be deemed ' hostes humani generis within the precepts
of international law \36
29 5 Wheat. 153.
30 25 F. 408, Hudson, p. 187; above, p. 334.
31 See the criticism of Wharton, that foreign States ought not to interfere to
suppress rebellion in another State (loc. cit., p. 125, Moore, Digest, vol. II,
pp. 1104-5).
82 See the opinion of the Solicitor for the State Department, 1929 (Hackworth,
vol. II, pp. 696-9).
33 Bayard to Whitney, April 15, 1885 (Moore, Digest, vol. II, p. 1097).
34 5 Blatch. 6, 12 (ibid., p. 1079).
35 Bayard to Whitney, July 14, 1885 (ibid., p. 1097).
38 Wharton, vol. Ill, p. 467. See also Bayard to Becerra, Colombian Minister,
April 24, 1885 (Moore, Digest, vol. II, p. 1090). This view was restated in
a note to Colombia in 1900 (ibid.).
404 Recognition of Belligerency and Insurgency
This policy of presuming the non-piratical character of insur-
gent ships has also been adopted by other Powers." A narrower
interpretation of this rule was, however, applied by Dr.Lushington
in The Magellan Pirates (1853). It was held that the presumption
of non-piratical character must be negatived as regards acts of
insurgent ships which are unconnected with the rebellion.38 It
is also thought by some writers that operations by insurgent ships
after the termination of the insurrection would be deemed
piratical.39
Since the basis for the presumption of the non-piratical char-
acter of insurgent ships is the principle of non-interference in
the domestic affairs of other States, that principle cannot be main-
tained unless foreign States are free to disregard the decrees of
the established government declaring insurgent vessels as pirates.
This position has always been taken by foreign States " and is
upheld by the majority of writers.41
The case is different where the insurgent ships commit depre-
dations upon ships or property of foreign States. British and
87 See the policy of the British, French and German Governments towards
Spanish insurgents in 1873 (Calvo, op. cit., n. 19, p. 337 above, vol. I, ss. 497-
501); the policy of the Brazilian Government in the cases of The Portena, 1873
(ibid., s.. 502) and The Montezuma, 1877 (ibid., s. 503); the action of the
Roumanian Government in the case of The Kniaz Potemkin, 1905 (Cobbett,
vol. I, p. 321). In the case of The Montezuma, however, the British Govern-
ment took a contrary view (Lauterpacht, p. 312).
88 1 Spinks E. and A. 81, 86.
"See comments on The Shenandoah incident (1865), in Westlake, op. cit.,
vol. I, p. 186; Oppenheim, vol. I, p. 561.
40 See the following cases of the refusal of foreign States to enforce the piracy
decrees of the established governments: -the British, French and German
Governments during the Spanish Civil War, 1873 (Hall, p. 318; Calvo, op. cit.,
vol. I, ss. 497-9, vol. Ill, ss. 1146-8, Lauterpacht, pp. 327-8); the Brazilian
Government in the cases of The Portena, 1873 (Calvo, op. cit., vol. I, s. 502)
and The Montezuma, 1877 (ibid., s. 503); the United States Government during
the Venezuelan revolt in 1885 (Moore, Digest, vol. II, pp. 1105-6), during
the Colombian revolt in the same year (ibid., p. 1055; Wharton, vol. Ill, p.
467), during the Nicaraguan revolt in 1899 (Moore, Digest, vol. II, 1121). See
also Secretary Frelinghuysen to Langston, December 15, 1883 (ibid., p. 1087).
During the Spanish Civil War, 1936-39, the Spanish request to treat insurgent
ships as pirates was merely acknowledged by the United States (Hackworth,
vol. II, p. 696). See also Article II of the Havana Convention, 1928 (ibid.,
p. 695).
41 Wharton, quoted in Moore, Digest, vol. II, pp. 1104-5; Calvo, quoted ibid.,
p. 1101; Wilson, U.S. Naval War College, International Law Situations, 1904,
p. 35 et seq.; Lauterpacht, p. 296. The same view is expressed by the Sub-
committee of the League of Nations Committee of Experts for the Progres-
sive Codification of International Law (Hackworth, vol. II, p. 695). The
following writers are of the view that insurgents, so long as they confine
their activities to violence against their enemy, cannot be regarded as pirates :
Hall, pp. 312-3, 318; Hyde, vol. I, p. 773; Cobbett, vol. I, p. 321; Westlake,
op. cit., vol. I, p. 185.
Recognition of Insurgency 405
American practice has been to regard such acts as piratical."
Even so, the treatment meted out to the insurgents is usually less
drastic than would have been the case with real pirates." The
claims of States to resist and suppress acts of violence against their
ships are often not limited to those committed by unrecognised
insurgents.41 This being the case, the fact that insurgent ships
committing depredations upon foreign ships are resisted and
punished does not necessarily mean that the stigma of piracy is
attached for the sole reason of their insurgency. It is therefore
generally correct to say that foreign States usually take notice
of the fact of insurgency in order to discriminate insurgent ships
from ordinary pirates.
Concession of a limited right of war. Whether a foreign State
may concede to an insurgent body the exercise of certain belliger-
ent rights against itself is a question which cannot be answered
in unqualified terms. There is one opinion which regards the
exercise of war rights by the insurgents within the territorial limits
of their own country as an unquestionable right. Thus, in 1858,
Attorney-General Black of the United States declared that ' there
is no authority for a doubt that the parties to a civil war have
the right to conduct it with all the incidents of lawful war within
the territory to which they both belong V5 Sir Arnold McNair
suggests that the insurgents should have a right of ' quasi-
blockade ' within territorial waters.46 Professor Hyde holds a
more restrictive view. He denies the right of insurgents to estab-
lish a blockade, although he agrees that under certain conditions
they might enjoy rights within territorial waters, and thinks that
12 See The Magellan Pirates (n. 38 above) and the numerous cases mentioned
in Lauterpacht, -pp. 298-303.
" Ibid., pp. 304-5. [In The Magellan Pirates the captured insurgents had been
handed over to the legitimate government; the action being for bounty for
the capture of pirates.] See also Article II, Havana Convention of 1928
Hackworth, vol. II, pp. 695-6).
"Thus, the United States denounced the activities of Spanish privateers as
piratical (Secretary Adams to Nelson, April 28, 1823, Manning, Diplomatic
Correspondence of the United States Concerning the Independence of the
Latin-American Nations, 1925, vol. I (Pt. I-II), p. 167). The same charge
was preferred against Argentinian authorities in 1832 (Secretary Livingston
•to Baylies, April 13, 1832, Manning, Diplomatic Correspondence of the United
States, InterrAmerican Affairs, 1932, vol. I, p. 14). See also The Magellan
Pirates (1853), 1 Spinks E. & A. 81, 83. The Nyon Agreements of 1937 (31
A.J.I.L., 1937, Supplement, p. 179) may perhaps be regarded as belonging to
this category, as they treated as piratical ships which might have belonged
to the Republican Government of Spain.
" Moore, Digest, vol. II, p. 1078.
"McNair, loc. cit., p. 488.
406 Recognition of Belligerency and Insurgency
a ' reasonable effort by the insurgents within the territorial waters
appurtenant to an area under their control to prevent military aid
from reaching their foes would probably be respected \" During
the Brazilian revolution pf 1893-1894, the United States Navy took
steps to oppose the activities of the insurgents within the territorial
waters." This is criticised by Moore, who says : ' The existence
of domestic hostilities does not in itself confer upon foreign powers
any legal authority within the jurisdiction of the nation, within
which the insurrection prevails '."
It is believed that the principle of territorial sovereignty is a
paramount principle of international law, which may be dis-
regarded only under conditions of absolute necessity."8. The fact
that foreign States may not interfere with the operation of
hostilities within the territorial limits of the troubled State must
be explained by the existence of this paramount principle, and
not by the fact that the recognition of insurgency has made the
exercise of belligerent rights permissible. The existence of civil
strife is merely a fact which justifies the plea of non-responsibility
of the established government, provided it has exercised due
diligence in the suppression of the insurrection.50 A foreign State,
which cannot hold the established government responsible for
acts of insurgents, and is not entitled to take direct action within
the territorial limits of the troubled State, must either avoid enter-
ing into that State or submit to interference by the contesting
parties. Such a situation would, in appearance, seem to be a
partial concession of belligerent rights. In reality, it is only the
application of the principle of territorial sovereignty, and the
admission of the right of revolution.
Maintenance of intercourse with insurgents. So long as the
insurgents hold some sections of the territory and population
under their power, intercourse with them would be inevitable.
During the Chilean revolution of 1891 the diplomatic corps
avoided direct intercourse with the insurgents, and its protests
were sent through the consular corps at the ports. There were,
" Hyde, vol. II, p. 2186; also Moore, U.S. Naval War College, International
Law Situations, 1901, p. 137; Wilson, ibid., 1912, pp. 32-3.
48 Moore, Digest, vol. II, pp. 1115, 1117-8.
"Ibid., p. 1120.
49a- [See, for example, comments of International Court of Justice Corfu Channel
Case (Merits), (1949) I.C.J. Reports 1949, p. 4, at pp. 34-35.]
50 See above, pp. 328, 373-4.
Recognition of Insurgency 407
however, constant contacts between the British and insurgent
naval officers, and gun salutes were exchanged.51 During the
Brazilian revolution of 1893-1894 foreign naval officers were also
constantly in touch with the insurgents.52 Oppenheim seems to
consider it proper for foreign States not having recognised the
belligerency of the insurgents to maintain with them certain rela-
tions necessary for the protection of their nationals, for securing
commercial intercourse, and for other purposes connected with
the hostilities.53 Needless to say, such intercourse cannot but be
informal, temporary and matter-of-fact.
In conclusion, it may be said that the recognition of insurg-
ency, like the recognition of belligerency, is the acknowledgment
of a certain state of facts. But in the case of insurgency the
situation of fact falls short of a civil war and does not constitute
a distinct status for the insurgents giving rise to special rights and
duties prescribed by international law. The fact of insurgency is
nevertheless different from a normal condition of peace. Foreign
States are obliged to take notice of this disturbed condition and
to adjust themselves to it. On the one hand, they would have to
concede the plea of irresponsibility of the established govern-
ment; on the other hand, they would have to exert themselves
against attempts to use their territories as bases of hostilities
• against the established government. They would generally regard
with leniency the activities of the insurgents, even if their own
interests were interfered with. The foreign States in assuming
such an attitude would no doubt be imposing extra burdens upon
themselves, but such burdens would seem to be inevitable, if the
foreign States are prepared to observe scrupulously the supreme
principles of the independence and the territorial sovereignty of
the troubled State.
51 Moore, Digest, vol. II, p. 1109.
52 Ibid., pp. 1114-6.
53 Oppenheim, vol. I, p. 135. Also Lauterpacht, p. 270.
PART SEVEN
THE DOCTRINE OF NON-RECOGNITION
CHAPTER 27
THE MEANING OF THE DOCTRINE
AS has been shown, since the establishment of a new State or
- government or the outbreak of a civil war is itself not
illegal in international law, recognition by foreign States is not a
pronouncement on the legal right to rule or the right to attain
power, but is at most an expression of a political attitude and
evidence of the official knowledge of the facts having taken place.
[In such instances, an act of recognition ' can be adduced against
(the recognising State) by other subjects of international law as
evidence of acquiescence. . . . Short of a customary rule of
international customary or treaty law, a new state of affairs is
not opposable to a State which has not recognised it, and, if it
has done so, only within the limits of such recognition '.] * The
role of recognition is different, however, in cases where the act
or situation in question is internationally illegal or of ques-
tionable legality. In such a case, recognition assumes the
character of a waiver of a claim, in so far as it concerns the
recognising State, and an act of quasi-legislation, as regards the
whole community, if participated in by a sufficient number of
States.3 Non-recognition is said to ' bar the legality ' of the act
or situation in question,3 unless otherwise legalised. Examples
of this type of non-recognition are numerous. Thus, in 1890,
France refused to recognise the British protectorate over
Zanzibar." In 1908 Great Britain refused to recognise the
annexation of the Congo by Belgium,5 and of Bosnia and Herze-
govina by Austria-Hungary.6 The Russian denunciation of the
1 [Schwarzenberger, op. cit., n. 55, p. 22 above, p. 62.]
2 Lauterpacht, p. 412.
3 See letter from Secretary Stimson to Senator Borah, February 24, 1933,
quoted in Wright, The Stimson Note of January 7, 1932, 26 A.J.I.L., 1932,
342, at p. 343.
4 See Williams, loc. cit., n. 35, p. 123 above, p. 276.
5Cmd. 6606, 1913, p. 22. Recognition was also refused by the United States
(Hackworth, vol. IV, p. 684).
6 Gooch and Temperley, British Documents on the Origin of the War, 1898-
1914, vol. V, p. 390.
411
412 The Doctrine of Non-Recognition
regime of the Black Sea in 1870 was refused recognition by the
Powers, signatories to the Declaration of Paris, 1856.7 The
United States refused to recognise the Sino- Japanese Treaty of
1915.8 In 1917 China also declared its non-recognition of the
Lansing-Ishii Agreement between the United States and Japan.9
A policy of non-recognition was declared by the United States
in the famous Stimson Note of January 7, 1932, which was
followed by similar pronouncements by various organs of the
League of Nations and its members.10 This doctrine of non-
recognition was applied by nineteen American States in August,
1932, to the Chaco dispute between Bolivia and Paraguay,11 by
the United States, France and the Soviet Union to the German
annexation of Czechoslovakia in 1939,12 and by the United States
to the Soviet annexation of the Baltic Republics in 1940."
That the two classes of non-recognition are of distinctly
different nature may be easily seen. An internal revolution-
ary change, although it violates municipal law, does not
violate international law, and its lawfulness is therefore not
subject to scrutiny by foreign States. On the other hand, in
7 McNair, Law of Treaties, 1938, pp. 351-4.
8 MacMurray, Treaties and Agreements with and Concerning China, 1894-1919,
vol. n, p. 1236.
9 U.S. For. Rel., 1917, p. 270.
10 See Hill, Recent Policies of Non-Recognition, 1933, pp. 361-8; Willoughby,
Sino-Japanese Controversy and the League of Nations, 1935, p. 206 et seq.;
Langer, Seizure of Territory, 1947, chapter 10. The relevant passage of the
Stimson Note reads : ' In view of the present situation and of its own rights
and obligations therein, the American Government deems it to be its duty
to notify both the Imperial Japanese Government and the Government of
the Chinese Republic that it cannot admit the legality of any situation de
facto nor does it intend to recognise any treaty or agreement entered into
between these Governments, or agents thereof, which may impair the treaty
rights of the United States or its citizens in China, including those which relate
to the sovereignty, the independence, or the territorial and administrative
integrity of the Republic of China, or to the international policy relative to
China, commonly known as the open-door policy; and that it does not intend
to recognise any situation, treaty, or agreement which may be brought about
by means contrary to the covenants and obligations of the Pact of Paris of
August 27, 1928, to which Treaty both China and Japan, as well as the United
States, are parties' (Documents on International Affairs, 1932, p. 262; Langer,
op. cit., p. 58).
11 Survey of International Affairs, 1933, pp. 407-8; Langer, op. cit., p. 68.
12 Langer, op. cit., pp. 221-2, 231. But no parallel step was taken by Britain
(Pari. Deb., H.C., 5th ser., vol. 348, col. 1786; vol. 347, cols. 961, 962; Langer,
op. cit., pp. 223-30).
13 See Briggs, Non-Recognition in the Courts : The Ships of the Baltic Republics,
38 A.J.I.L., 1944, p. 585; Langer, op. cit., p. 263. The doctrine was, however,
not formally invoked in the cases of the Italian annexation of Abyssinia in
1936 (ibid., Ch. 21; Spenser, The halo-Ethiopian Dispute and the League of
Nations, 31 A.J.I.L., 1937, p. 614; L.o.N. Off. J. Special Supplement, No. 151,
p. 60) and the German annexation of Austria in 1938 (p. 67 above).
The Meaning of the Doctrine 413
the case of an alleged violation of international law, foreign
States, being themselves interested parties, would necessarily claim
the right to satisfy themselves of the legality of the act or situation
in question before treating it as valid. Here, recognition is not
a mere confirmation of facts, but may have the effect of creating
or conferring, at least so far as the recognising State is concerned,
rights previously non-existent.
It may be objected that such a distinction does not justify the
application of different principles in the two cases. As recogni-
tion is accorded to new States and governments for the reason of
their actual existence accompanied by a reasonable assurance
of permanence, so also, it is argued, an act or situation in violation
of international law should be regarded as legal once evidence
of permanence can be adduced, because it may be presumed from
such permanence that the law has been modified in view
of the changed facts. This argument is basically true, but only
to the extent of saying that the principle ex factis jus oritur li is
applicable to both situations. Within the limits of this general
principle, there may still be room for the two cases to be treated
differently. In the first place, in the case of new States or govern-
ments, the principle operates as the sole criterion of legality:
legal quality should not be denied to the actual possessor, as soon
as his possession is secured, but no sooner. In the case of illegal
acts or situations, the principle only sets a lower limit, leaving
the injured State discretion to accord recognition, even when
the possession of the wrongdoer may still be precarious. The
waiver of a right or the changing of law through quasi-legislation
is a free act. When done prior to the legalisation through other
means, such as prescription, it confers rights on the wrongdoer,
and is therefore constitutive in effect.15 Secondly, the principle
that permanence of possession eventually creates legal rights,
though applicable to tangible matters, such as the occupation
of territory, does not apply in the same way as regards intangible
matters. Supposing States A and B enter into a treaty to divide
up a portion of the open sea, and A subsequently renounces it
on the ground of illegality, it is not supposed that the treaty can
be legalised by the fact that B has had prolonged ' possession '
"Below, p. 420 et seq.
15 In the recognition of States and governments, the rights are acquired through
the operation of the law, and the recognition is therefore declaratory.
414 The Doctrine of Non-Recognition
of the right. Thirdly, the test of ' permanence ' in the case of
illegal acts is not physical possession alone. It rather lies in the
conviction of the bulk of States that the fact as it exists must,
be accepted as. inevitable. In the absence of such a conviction,
the physical possession may still be insecure. But if such a con-
viction does exist, the very manifestation of it would constitute
recognition. To argue that, when a situation passes the test of
permanence, recognition can be dispensed with, is therefore to
argue in a circle. These considerations lead inevitably to the
conclusion that, subject to the fundamental principle of ex factis
jus oritur, the recognition of illegal acts or situations should be
treated differently from the recognition of States and governments.
In view of this difference, it would seem unjust to accuse Mr.
Stimson of inconsistency for maintaining the doctrine of non-
recognition of international illegality after having declared himself
against the Wilsonian doctrine of constitutionalism in the recog-
nition of revolutionary governments.16 Nor can the criticism be
made against the American Institute of International Law or the
States represented at the Seventh International Conference of
American States, who declared that non-recognition should be
applied to illegal acquisitions of territory, but not to revolutionary
governments.17 The distinction has been emphatically pointed
out by Professors Lauterpacht18 and Wright,19 and, less emphati-
cally, by Sir Arnold McNair,30 though the idea has powerful
dissentients.21
The fact that, in the actual course of events, elements of both
types of recognition often enter into a single situation may have
added confusion to the issue. For instance, a new State may be
set up in the territory of an existing State through the intervention
of a foreign State. However, if, once set on its feet, the new
State is in fact able to lead an independent national life, the
16Lippmann and Scroggs, op. cit., n. 41, p. 112 above, p. 334.
17 Project VI, Article 5, and Project XXX of the American Institute of Inter-
national Law, 30 A.J.I.L., 1936, Special Supplement, p. 310; Articles 3 and
11 of the Montevideo Convention, 1933, 28 A.J.I.L., 1934, Supplement, pp.
76, 77.'
18 Lauterpacht, pp. 410, 412, 419-20.
"Wright (ed.), Legal Problems in the Far Eastern Conflict, 1941, p. 118.
20 McNair, The Stimson Doctrine of Non-Recognition, 14 B.Y.I.L., 1933, p. 65,
at pp. 66-7.
21 E.g., Moore, An Appeal to Reason, 11 Foreign Affairs, 1933, p. '547, at p.
578; Middlebush, Non-Recognition as a Sanction of International Law, 27
Proceedings, 1933, p. 40, at p. 44; Cavar6, loc. cit., n. 34, p. 17 above, p. 1;
Borchard, in Wright, op. cit., p. 157.
The Meaning of the Doctrine 415
mere fact that the intervening State had committed a breach of
international law by the intervention does not necessarily
invalidate the legal existence of the new State. Its recognition
should be determined according to the usual principle >of de
factoism. On the other hand, if the intervention has not been
discontinued, the situation is one of invasion under the guise of a
separatist movement. The 'State7 cannot be recognised, for
want of the necessary requisites of statehood. The question would
be one of recognition of conquest, and not of recognition of a
State.22
In view of the differing character of the two types of case, it
may be said that the doctrine of non-recognition of illegal acts
or situations is not in any way a contradiction to the declaratory
theory of recognition, as applied to new States or governments.
In every legal community, the law, however weak, does not
succumb to violations without resistance, and the doctrine of
non-recognition serves the purpose of preserving the legal status
quo ante before the submission of law to the dictates of circum-
stances. One can reject the doctrine only if the non-recognition
is unduly prolonged and eventually unsuccessful. It will be of
great service, if, in any particular case, law should triumph over
the law-breaker, a situation which may not be entirely excluded
from possibility.
' Cf. above, pp. 58, 299.
CHAPTER 28
THE OBLIGATION OF NON-RECOGNITION
Apart from the general international law prohibition against
premature recognition, recognition of both types is discretionary,
unless regulated by treaty. Mention has already been made
of treaties or engagements limiting the right to recognise States
and governments.1 Although internal revolutionary changes are
independent of recognition by foreign States, non-recognition may
nevertheless bring political and economic pressure to bear upon
the unrecognised regime. A treaty of non-recognition would be a
reinforcement of the effectiveness of such political and economic
pressure.
The practice of States to bind themselves by means of inter-
national conventions not to recognise acts or situations in breach
of international law is a more recent development. In the past,
the purpose of international law has been limited to the protection
of the subjective rights of its subjects, as distinguished from the
objective rights of the society. An act in violation of a subjective
right is illegal, but the illegality does not concern third parties
and can be healed by the recognition by the injured party. This
is unlike municipal systems of law, under which certain rules are
obligatory and their observance is regarded as the common
concern of the whole society. The acceptance of the duty of
non-recognition in international law is to surrender the private
right of legalisation and to introduce into the international system
the obligatory character of the law. In this sense, the development
may be considered a novelty.2
The contribution of the American States in this field is most
1 Above, pp. 105, 108.
a [It is for this reason that Professor Jessup bases his concept of A Modern
Law of Nations, 1948, upon the principle ' that there must be basic recogni-
tion of the interest which the whole international society has in the observance
of its law. Breaches of the law must no longer be considered the concern of
only the State directly and' primarily affected. There must be something
equivalent to the national conception of criminal law, in which the community
as such brings its combined power to bear upon the violator of those parts
of the law which are necessary to the preservation of the public peace ' (p. 2).]
416
The Obligation of Non-Recognition 417
noteworthy. They have entered into numerous multipartite
agreements and made collective declarations affirming their
determination not to recognise territorial changes effected through
non-pacific means.3 Outside of the American Continents com-
parable arrangements are of less frequent occurrence. A rare
example may be found in the Treaty of 1921 between the Soviet
Union and Turkey.4
The Covenant of the League of Nations does not itself con-
tain an express provision on the duty of non-recognition,5 nor
does the Pact of Paris of 1928. Stimson, in his note of January 7,
1932, did not assume a general duty of non-recognition under
the Pact. But any impairment of the treaty rights of the United
States could not, he declared, be recognised in view of ' its own
rights and obligations therein '.' Professor Quincy Wright is of
the opinion that the duty of non-recognition flows from the
obligation of the parties to the Pact ' to condemn resort to war
for the solution of international controversies '. This obligation,
he believes, is incompatible with the approval of the results of
war involved in an act of recognition.7 This view is consistent
with the Budapest Articles of Interpretation, 1934, of the Inter-
national Law Association.8
It is generally believed that the duty of non-recognition is
implied in the Covenant of the League, Article 10 of which reads :
'The Members of the League undertake to respect and preserve
'E.g., the plan of the International American Conference of 1890 (Moore,
Digest, vol. I, pp. 292-3); the declaration by Nineteen American States,
August 6, 1932, regarding the Chaco dispute between Paraguay and Colombia
(Survey of International Affairs (1933), p. 408); Article 2 of the Anti-War
Treaty of Non-Aggression and Conciliation of October 10, 1933, signed at
Rio de Janeiro (28 A.J.I.L., 1934, Supplement, p. 79); Article 11 of the Con-
vention on Rights and Duties of States of December 26, 1933, signed at
Montevideo (ibid., p. 77); Article 1 of the Convention to Co-ordinate,
Extend and Assure the Fulfilment of the Existing Treaties Between American
States, signed at Buenos Aires, December 23, 1936 (31 ibid., 1937, Supple-
ment, pp. 59-60); the Havana Declaration No. XV, July, 1940, and the Act
of Chapultepec, March 6, 1945 (Langer, op. cit., n. 10, p. 412 above, pp. 82-3.
'See Article 1 of the Treaty (118 B.F.S.P., 1923, pp. 990-991).
5 Unsuccessful attempts were made to incorporate the principle into the
Covenant by Brazil in 1921 (L.o.N. Records the 2nd Assembly, Meetings of
Committees, pp. 400-1), by Finland in 1928 (L.o.N. Records of the 9th
Ordinary Session of the Assembly, Special Supplement No. 64, p. 75) and by
Peru in 1929 (L.o.N. Records of the 10th Ordinary Session of the Assembly,
Special Supplement No. 75, p. 168).
"Above, p. 412, n. 10 (italics added).
'Wright, op. cit., n. 19, p. 414 above, p. 117, n. 10. Contra, Langer (op. cit.,
p. 49), who thinks that there is no such obligation.
' Lauterpacht, The Pact of Paris and- the Budapest Articles of Interpretation,
20 Grotius Transactions, 1934, p. 178. Text printed ibid., p. 205.
418 The Doctrine of Non-Recognition
as against external aggression the territorial integrity and existing
political independence of all Members of the League' (italics
added). The refusal to treat a violation as legal seems to be the
minimum exertion that ought to be required from other members
consistent with their obligations under the Article.9 This seems
to be the interpretation adopted by members of the Council
(except China and Japan) in an appeal to Japan on February 16,
1932,10 and in the Council Resolution of March 8, 1933, regarding
the dispute between Peru and Colombia,11 and also by the League
Assembly in the Resolution of March 11, 1932,12 and in the
Assembly Report of February 24, 1933.13
The Charter of the United Nations does not contain a ' guaran-
tee clause ' similar to Article 10 of the Covenant, yet the members
of the United Nations have pledged themselves to suppress acts
of aggression or other breaches of the peace (Article I (1)), to
settle their disputes by peaceful means (Article 2 (3)), to refrain
from the threat or use of force against the territorial integrity or
political independence of any State (Article 2 (4)), and to refrain
from giving assistance to any State against which the United
Nations is taking preventive or enforcement action (Article 2 (5)).14
8 McNair, n. 20, p. 414 above, pp. 73-4; Lauterpacht, p. 417; Erich, loc. cit., n. 21,
p. 15 above, p. 456; Fauchtlle, op. cit., n. 24, p. 15 above, vol. I, Pt. II, s. 482;
Langer, op. cit., p. 41; Schwarzenberger, A Manual of International Law,
1950, pp. 30-31. This is also the general opinion expressed at the Round
Table Conference of the Institute of Pacific Relations at Virginia Beach,
November-December, 1939 (Wright, op. cit., p. 181).
10 L.o.N. Off. J., March, 1932 (Part I), p. 384.
11 L.O.N. Off. J., April, 1933 (Part I), p. 609.
12 L.o.N. Off. J., 1932, Sp. Suppl. No. 100, p. 8.
" 27 A.J.I.L., 1933, Supplement, p. 151.
It has been a matter of some dispute whether the obligation of non-
recognition flows directly from the Covenant, and, if not, how far the Assembly
Resolution of March 11, 1932, is binding upon the members. See the doubt
expressed by Williams (loc. cit., n. 90, p. 52 above, p. 778). Some writers
think that the resolution is an interpretation and application of the Covenant
(Sharp, Non-Recognition as a Legal Obligation, 1775-1934, 1934, p. 191;
Langer, op. cit., p. 96; also speech of Mr. Noel-Baker in the Commons,
Pari. Deb., H.C., 5th Ser., vol. 336, col. 785). The Assembly Report of
February 24, 1933, seems .also to regard non-recognition as an existing inter-
national obligation, rather than a new one created by the Resolution (27
A.J.I.L., 1933, Supplement, p. 151). In any case, so far as those members
of the League who have voted for the Resolution of March 11, 1932, are
concerned, the obligation is indisputable (Lauterpacht, p. 417, n. 4). But see
the summing up of the President of the Council, Mr. Munters, May 12, 1938,
that the members of the League were free to determine the matter ' in the
light of their own situation and their own obligations ' (L.o.N. Off. J., 1938,
p. 346).
u [Goodrich and Hambro (op. cit., n. 98, p. 210 above), however, find it possible
to discuss all these paragraphs without mentioning non-recognition (pp. 93,
101-8).]
The Obligation of Non-Recognition 419
It is hardly possible that recognition of illegal acquisitions could
be compatible with these obligations. It is believed by some
writers that the duty of non-recognition is also implied in the
Nine-Power Treaty, 1922, and the Locarno Treaties of 1925.15
'Sharp, op. cit., pp. 122, 124.
CHAPTER 29
THE DOCTRINE OF NON-RECOGNITION AND
THE MAXIM EX FACTIS JUS ORITUR
The doctrine of non-recognition signifies the advocacy of the
principle that an act or situation should be regarded as illegal,
if, in the contemplation of the non-recognising State, it is a
violation of international law. This doctrine must be based upon
the assumption of the existence of law and the possibility of
distinguishing between what is lawful and what is unlawful. This
distinction, while it presents no difficulty in municipal systems,
does not, in view of the special character of international society,
seem to be self-evident. In international society, the State assumes
the position of both a subject as well as a legislator. An act in
derogation of an existing rule of law may be an illegal violation
of law, or, in certain circumstances, may develop into a new rule
of law. This brings into special prominence the role in inter-
national law of the maxim ex factis jus oritur.
Like all systems of law, international law is based upon social
reality. On the one hand, the validity of law, like the validity
of grammar, is not dependent upon actual observance in any
particular case; on the other hand, continuous breach of the law
with impunity may eventually undermine its validity. Continuous
toleration of breaches of law by society is an indication that the
law no longer corresponds with social facts and that a new law
which sanctions the rights originating in illegality is in the making.
This does not mean, however, that every successful breach of law
can immediately assume the dignity of a new legal order.1 The
problem of jurisprudence is precisely to find the point at which
a rule of law ceases to represent the social reality and ought to
give-place to a new rule.2
After every important international upheaval there occurs a
1 For example, it has been pointed out that the invasion of Germany did not
extinguish the neutralisation of Belgium, which was expressly reaffirmed in
the treaty of May 22, 1926 (McNair, loc. cit., n. 87, p. 207 above, p. 114).
3 Lauterpacht, pp. 426-7; Goebel, op. cit., n. 21, p. 15 above, pp. 47-8.
420
Non-Recognition and Ex Factis Jus Oritur 421
shift of political, economic and social balance, with the result that
new legal principles have to be evolved and new legal orders have
to be introduced to suit the new social reality. An example of
international quasi-legislation 3 may be said to have taken place,
in so far as it purports to readjust the legal relations between
members of the international society.4 The readjusted legal rela-
tions would then receive the protection of the society, despite the
. fact that the new situation may have resulted from a derogation
of rights protected by the pre-existing legal order.5 Less apparent
may be the 'legislative' activities of individual States. Yet,
unless the existing legal order is supported by an overwhelming
physical force, there is the possibility that an illegal fact, if sus-
tained and promising permanence, may, although created by a
single state, have to be tolerated and form a part of the new legal
order.
The precariousness of the superiority of the power of the
international society over disruptive forces has made it possible
for individual States to take, not only law, but also legislation,
into their own hands. Here, the maxim ex factis jus oritur may
be said to have its widest scope of operation. The authority of
law is reduced almost to a figure of speech. The fundamental
remedy lies in raising the margin of superiority of the social force
over the disruptive forces. This task has been assigned to such
peace instruments as the Covenant of the League of Nations, the
Pact of Paris, and the Charter of the United Nations. The purpose
of these instruments is to build up the organised force of the
international society, and at the same time forbid the private
use of force by its individual members. But the curtailment of
the maxim ex factis jus oritur will not be effective unless the
principle is recognised that the amendment of the law through
its violation by individual States is invalid. Conversely, the
doctrine of non-recognition can have no meaning if every act of
violence automatically becomes law through its own force.
'The term 'legislation' may, in strictness, mean only changes in legal rules.
Here it is used to include alterations in the legal situation under such rules.
Cf. Gihl, International Legislation, 1937, p. 79.
4 If the readjustment is embodied in treaties, such treaties may be regarded
as law-making. See Keith's Wheaton, vol, I, pp. 520-1; McNair, loc. cit., pp.
112-5; Wright, Conflict between International Law and Treaties 11 A.J.I.L.,
1917, pp. 566, 572 et seq.
5 Law represents the will of the dominant part of the community for the time
being and is enforceable only with the support of that dominant part. See
Roxburgh, The Sanction of International Law, 14 A.J.I.L., 1920, p. 26.
422 The Doctrine of Non-Recognition
It is indeed true that war performs an important function in
international society, and, like revolution within a State, it is a
means of rectifying the discrepancy between law and fact, between
the force of stability and the force of change.6 It is not suggested
that war, any more than revolution, can be abolished by law.
War is extra-legal, is beyond the law. If the basis of the legal
order is fundamentally altered by war and revolution, the law
must be changed accordingly. Ex factis jus oritur. But the law can-
not contemplate the use of force in its own violation as an everyday
instrument for the changing of rights. This is the point at which
the maxim should cease to operate and the doctrine of non-recog-
nition should apply. The doctrine of non-recognition, together
with the principles of the Covenant, the Pact, and the Charter,
does not deny the inevitability of war, revolution and the maxim
ex factis jus oritur. It merely attempts to bring the situation into
closer resemblance to municipal laws, by removing the initiative
for international law-making and law-changing from the hands of
single defiant States to those of the society, without dismissing,
however, the possibility of violent changes through general revo-
lutionary wars, in which case, theoretically, it may still be con-
sidered as a change by the force of the society, and not of an
individual.
6 Brierly, International Law and Resort to Armed Force, 4 Cambridge Law
Journal, 1932, p. 308, at p. 318; Williams, The New Doctrine of Recognition,
18 Grotius Transactions, 1932, p. 109, at p. 110.
CHAPTER 30
THE DOCTRINE OF NON-RECOGNITION AND
THE EXISTENCE OF OBJECTIVE LAW
The doctrine of non-recognition as contained in Stimson's Note
of January 7, 1932, specifies two kinds of legal relationship to
which the doctrine is to apply : an agreement which may impair
the Treaty rights of the United States, and one ' which may be
brought about by means contrary to the covenants and obligations
of the Pact of Paris of August 27, 1928 7 The first involves a
violation of substantive rights. The application of the doctrine of
non-recognition to this case cannot give rise to legal objections, as
it has always been the practice of States to deny the validity of
acts in violation of their rights. It is the second situation to which
objections have been directed. Thus Sir John Fischer Williams
has argued that there is no such thing as objective illegality,2
and that an act can be illegal only when the right of a subject of
the law is violated. What is illegal to A may not be illegal to B.
Consequently an act is not invalid inter partes merely because a
third party questions its legality.8 An act done by illegal methods
may give rise to claims, but the result of the act need not be
illegal.1 As an illustration, he cites the case of the Anglo-German
Treaty of 1890. Although that treaty may have been an infringe-
ment of French rights under the Anglo-French Treaty of 1862
regarding the status of Zanzibar, the cession of Heligoland by
Britain to Germany provided in the ' illegal ' treaty of 1890 need
not be illegal." Similarly, if a State violates a treaty not to main-
tain an army, it does not entitle other States to treat that army
as bandits.6 Or an analogy from private law, if A builds a house
and materials for it are carried through B's land; the trespass is
1 Above, p. 412, n. 10.
2 Williams, loc. cit., n. 90, p. 52 above, p. 789.
3 Ibid., p. 790.
' Williams, loc. cit., n. 35, p. 123 above, pp. 270-1.
* Ibid., p. 276.
'Ibid., p. 278.
423
424 The Doctrine of Non-Recognition
illegal, but the title to the house (the ' result ' of the trespass) is
not affected.7
Williams' argument is that a third State whose right is not
directly injured has no right to question the legality of an act;
and that, even if not recognised by third States, the act will still
be binding inter partes. Both of these propositions are open to
challenge.
The first proposition is to deny the existence of objective law.
It is true that, in international law as it is to-day, public protection
of rights falls far short of adequacy. But the public right of mem-
bers of the international society to have the law observed cannot
be said to be absent.8 It is not altogether new for nations to
claim the right to regard as illegal a situation in which no subjec-
tive right of their own is involved.9 Often the question of the
legality of acts of other States is thrust upon them, and a
pronouncement on their lawfulness is unavoidable. Thus a State
may have to decide upon the legality of the conferment of title
by a foreign State to property found within occupied territory.10
The view that there is objective law in the international society
is fully borne out by the International Commission of Jurists
dealing with the Aaland Island dispute between Sweden and
Finland. It was held by that Commission that the Declaration
of Paris, 1856, constituted a ' true objective law *. States, though
having no subjective rights under it, may acquire rights ' by
reason of the objective nature of the settlement '." To say that
an act is objectively illegal does not mean that it can be illegal
without any right being injured. It means only that the right
injured is the public right of a member of the society to have the
law maintained. Williams, in denying the notion of ' objective
illegality,' said : ' An objective illegality, that is, illegality apart
from the violation of either a private or a public right, is some-
thing unknown, so I believe, to legal science.' 12 It seems that
7 Williams, loc. cit., n. 4 above, p. 277.
8 See- Root, The Outlook for International Law, 9 Proceedings, 1915, 2; Wright,
op. cit., n. 19, p. 414 above, p. 83; Peaslee, The Sanction of International Law,
10 A.J.I.L., 1916, p. 328, at p. 331 et seq.
9 See examples, Wright, op. cit., p. 84, n. 2.
10 See various possibilities considered in Lauterpacht, p. 424.
11 L.o.N. Off. J., No. 3, Special Supplement, 1920; Survey of International
Affairs, 1920-1923, pp. 234-8; McNair, So-called State Servitudes, 6 B.Y.I.L.,
1925, p. Ill, at p. 114.
12 Williams, loc. cit., n. 2, above, p. 789.
Non-Recognition and Objective Law 425
his objection to the notion of ' objective illegality ' is only a matter
of definition and not of principle.
If an act violating an objective rule of law is considered illegal
and without effect by every member of the international society,
the law-breaking State can derive little comfort from the thought
that it is not void inter partes. The essence of the legal validity
of an act consists in the assurance of support from the society.
The lack of this support may perhaps be ignored, only if the
parties concerned are willing voluntarily to carry out the effect
of the act, whether it be legal or illegal, such as the execution
of a suicide pact. If, on the other hand, the case is, as it is likely
to be, one in which one of the parties has submitted to violence
because it has no power to resist, non-recognition by the society
would enable the unwilling party to deny the effect of the act
without itself committing a breach of law. If the act is one of
the transfer of territory, non-recognition may cause substantial
difficulties to the effective assertion of sovereignty by the law-
breaker. It would seem that non-recognising States would be
under no obligation, either under general international law, or
under the special guarantees such as provided in Article 10 of the
Covenant, to respect the sovereignty of the law-breaking State
with regard to the territory in question.13
The suggestion that the ' result ' of an illegal act may not
necessarily be invalid can be supported only upon two conditions.
First, the relation between the illegality and the ' result ' must
not be too immediate. Thus, the examples given by Sir John
Fischer Williams regarding the cession of Heligoland and the
house-building sustain his argument only because of the remote-
ness between the illegality and the ' result '. Supposing, instead
of Heligoland, Britain ceded to Germany a part of Normandy,
or, instead of carrying materials through B's land, A illegally
built his house on B's land, the illegality of the ' result ' would
be manifest.
Secondly, the law violated must not be of a peremptory
character. Sir John himself admits that if a treaty violates a
general superior rule of international law or morality and is
tortious against a third party, such as a treaty to revive the slave
trade or to encourage piracy, it would be null and void ab initio.11
13 McNair, loc. cit., n. 20, p. 414 above, p. 73.
14 Williams, loc. cit., n. 4 above, p. 282.
426 The Doctrine of Non-Recognition
In his example of the treaty prohibiting the maintenance of an
army, the question lies in whether the prohibition constitutes a
peremptory rule of law or merely a contractual obligation.15 If
the former, the refusal to apply the laws of war to an army thus
illegally maintained may not be altogether out of the question.
In 1864, and again in 1868, when certain States threatened to
revive privateering, the British Law Officers took the view that
the belligerent rights of visit and search could be denied to such
privateers.16 On the similar question whether a violator of the
Covenant, Pact, or Charter is entitled to the rights of war, there
is considerable authority for the view that he ought to be denied
such rights.1'
It is believed that the fundamental principle of general
jurisprudence expressed in the maxim ex injuria jus non oritur,
according to which an illegality cannot be a source of legal right
to the wrongdoer, is applicable in international law, subject to
the qualification that the exercise of clear legal powers may
establish rights, even though those powers are exercised in breach
of a legal duty.18 An act may be illegal because it is a breach of
a contractual obligation, or of an obligatory rule of law. A breach
of contractual obligations merely entitles the injured party to the
annulment of the agreement and to a claim for damages,1'
whereas a breach of an obligatory rule of law would render the
act void.20
If a treaty forming part of the general international law is
15 For the distinction, see below, p. 435.
16 McNair, Law of Treaties, 1938, pp. 518, 519-20.
"See Lauterpacht, p. 423; Wright, op. cit., p. 95; Anderson, Harmonising the
League Covenant with the Peace Pact, 27 A.J.I.L., 1933, p. 105 at p. 106;
Schwarzenberger, op. cit., n. 5, p. 260 above, pp. 98-9, 108-110, and loc. cit.,
n. 83, p. 72 above, p. 114; proposed Geneva Protocol of 1924 (L.o.N. Assembly
Document C. 582, M. 199, 1924, IX), Article 15, quoted in Wright, Responsi-
bility for Losses in Shanghai, 26 A.J.I.L., 1932, p. 586, at p. 587. Contra,
Woolsey, Peaceful War in China, 32 A.J.I.L., 1938, p. 314, at p. 318; Moore,
loc. cit., n.21, p. 414 above, p. 561; Jessup, The Birth, Death and Reincarnation
of Neutrality, 26 A.J.I.L., 1932, p. 789, at p. 792; [in A Modern Law of
Nations, Jessup suggests that more stringent rules might be applied against
such a law breaker than against those upholding the law on behalf of the
international organisation (p. 214).] In the late war there was, however, no
attempt to outlaw the Axis forces [although such a policy was advocated
by Schwarzenberger, op. cit., n. 5, p. 260 above, Ch. 4].
18 Wright, op. cit., p. 91; Lauterpacht, pp. 420-4; Sharp, op. cit., n. 13, p. 418
above, pp. 196-205.
18 Fenwick, International Law, 1948, p. 452; Hall, p. 408; Keith's Wheaton, vol.
I, p. 515; Hackworth, vol. V, pp. 342-3; McNair, op. cit., p. 515; Schwarzen-
berger, op. cit., n. 55, p. 22 above, pp. 203-4.
20 See below, p. 435.
Non-Recognition and Objective Law 427
violated, it is obvious that the purpose of the law cannot be
achieved by its annulment by the injured parties. It would be
absurd to vindicate law by a reversion to lawlessness.21 It is in the
nature of such a treaty that, in the event of violation, it is the
right and the duty of other parties to insist upon its observance.
Such may be said to be the nature of the Declaration of Paris,
1856,22 the Pact of Paris, 1928,23 the League Covenant and the
Charter of the United Nations.21 The fact that the Covenant
(Article 17) and the Charter of the United Nations (Article 2 (6))
contain stipulations providing for their enforcement upon non-
members indicates that these instruments contemplate the estab-
lishment of, not merely subjective contractual relations between
parties, but a system of objective law in the international com-
munity.25
The development of such objective obligatory laws points
clearly to the creation of an international community in which
a breach of law is deemed an offence against the entire community
and each of its members.26 It matters little who is materially
injured by the breach : every member of the community is entitled
to claim the vindication of law as a matter of his own legal right.27
In such a community, an objective standard binding upon all
21 Scelle, op. cit., n. 20, p. 15 above, vol. II, p. 338.
22 See the view of the British Law Officers that, in the event of the violation of
the Declaration by other countries, it would be open to England to proceed
' at once and irrespective of English interests ' to enforce compliance with
the Declaration (McNair, op. cit., pp. 519-20).
28 See Wright, The Meaning of the Pact of Paris, 27 A.J.I.L., 1933, p. 39; Garner,
Non-Recognition of Illegal Territorial Annexation and Claims of Sovereignty,
30 ibid., 1936, p. 679, at p. 684.
21 Article 16 of the Covenant is precisely designed to become operative only
in case of a violation; Article 6 of the Charter provides for the expulsion of
a consistent violator.
25 See the contrary view that Article 17 of the Covenant binds only members
of the League (Anzilotti, op. cit., n. 7, p. 14 above, vol. I, pp. 415-6). [As
regards the Charter, Goodrich and Hambro state that ' it is doubtful whether
an international instrument like the Charter can impose legal obligations on
States which are not parties to it. The traditional theory ... is that treaties
cannot obligate third parties. If this theory is accepted the authority of the
United Nations under this paragraph is based exclusively upon the will and
power of the contracting parties ' {op. cit., n. 98, p. 210 above, pp. 108-9). See
also Kelsen, op. cit., n. 11, p. 213 above, who says, ' If the Charter attaches a
sanction to a certain behaviour of non-Members, it establishes a true obliga-
tion of non-Members to observe the contrary behaviour,' p. 107. Cx., how-
ever, opinion of International Court of Justice on Reparation for Injuries
Suffered in the' Service of the United Nations (1949, I.C.J. Reports, 1949,
p. 174, at p. 185).]
28 Cf. Jessup, op. cit., p. 2, see above, p. 416, n. 2.
" The United States regarded the maintenance of the sovereignty of China
as a treaty right of the United States. (Stimson Note, p. 412 above, n. 10.)
428 The Doctrine of Non-Recognition
would exist for testing the legal validity of the acts of its members.
Non-recognition would be the natural attitude of the law-abiding
members towards illegal acts. Probably the main difference
between international and intra-national society lies, not in the
lack of objective law for testing the validity of acts, but in the
lack of a central authority to administer the test, and the lack of
effective means to rectify the illegality.28
8 For discussions on the lack of central authority and the inadequacy of sanc-
tions, see below, pp. 439-40.
CHAPTER 31
THE APPLICATION OF THE DOCTRINE
§ 1. New States, New Governments and Belligerency
Although non-recognition is often spoken of in connexion with
new States, new governments and belligerency, it is a question
of a different nature from that which is under discussion, as those
situations are, in general, in no way violations of international
law. The element of illegality only enters when the establishment
of a State or government l is brought about by the acts of foreign
States. Should a State or government thus established as the
result of the intervention be refused recognition? Sir John Fischer
Williams is undoubtedly right in arguing that the new State,
.being non-existent at the time of the act of violation, ought not
to be penalised for an act for which it cannot be responsible.2
The real violator is the intervening foreign State. However, if
the ' State ' — or ' government ' — does not in fact exist, except as
an instrument of the foreign State, recognition cannot be accorded,
not because of the illegality of origin, but because the ' fact ' of
existence is farcical. The question is rather one of recognition
of conquest to which the doctrine of non-recognition should
apply.3
1 The contingency of civil war is not considered in this connexion. It is not
conceivable that a foreign State can bring about a civil war, for its interven-
tion in a civil war automatically transforms the struggle into an international
war. Hill, however, thinks that belligerency brought about by means contrary
to the Pact of Paris may be 'non-recognised' (op. cit., n. 10, p. 412 above, p.
395).
2 Williams, loc. cit., n. 35, p. 123 above, pp. 292-4. This was probably the case
when Great Britain protested against the proclamation of independence by
Bulgaria in 1908 as a violation of the Treaty of Berlin (Gooch and Temperley,
op. cit., n. 6, p. 411 above, vol. V, pp. 398-9). Bulgaria was not a party to the
Treaty. (69 B.F.S.P., 1877-1878, p. 749.)
8 This is probably an answer to Cavare's plea for the recognition of ' Manchukuo
on the ground that it 'existed' (pp. cit., n. 34, p. 17 above, p. 31 et seq.).
[Although there was much criticism by foreign States that the Communist coup
in Czechoslovakia in 1948 had been made possible by Soviet intervention,
the new Government was not refused recognition; an attempt was, however,
made by Chile to have the situation investigated by the Security Council of
the United Nations, but this was prevented by the exercise of the Soviet veto
(U.N. Docs. S/PV 268, 272, 273, 276, S.C. Official Records, 3rd Year, Nos.
53, 56, 63, 71, 73, 74).]
429
430 The Doctrine of Non-Recognition
§ 2. Acquisition of Territory
Title by conquest is the necessary result of the admissibility of
war as an instrument for the modification of existing rights.1 The
validity of the title thus acquired is not affected by the fact that
rights of third States may be injured in consequence of the non-
execution of their treaties with the former sovereign of the
absorbed territory.3 Those rights of third States are to be deter-
mined by the principles of State succession, which regulate the
extent to which treaty obligations are to be passed on to a
succeeding sovereign.6
Since the advent of the Covenant of the League of Nations,
the Pact of Paris and the Charter of the United Nations, treaty-
making under duress has been rendered illegal7 [ — although
duress against the person of the negotiator was regarded as render-
ing a treaty voidable 8 — J and other States signatories to those
documents are under the obligation of non-recognition.9 Con-
sequently, the only means open to the conqueror to make good
his title is through the process of prescription, [unless debellatio
has taken place and been followed by annexation or the creation
of a new subject of international law].10 Critics of the doctrine
of non-recognition have often invoked the principle of prescrip-
tion to show that de facto situations ought eventually to be
4 Oppenheim, vol. I, pp. 524-5; Hill, op. cit., n. 10, p. 412 above, p. 397. Some
writers, such as Bonfils, Fiore and Despagnet, however, refuse to recognise
subjugation at all as a mode of acquiring territory (Oppenheim, vol. I (6th ed.),
p. 521). [In the Ottoman Debt Arbitration (1925) Professor Borel, sole
arbitrator, said : ' Whatever may be the effects of occupation of a territory
before the re-establishment of peace, it is certain that this occupation alone
cannot create the transfer of sovereignty. . . . The transfer of sovereignty
can only be considered as taking effect by the entry into force of the treaty
which provides for it and with effect from the date stipulated therein ' (1
Reports of International Arbitral Awards, p. 529, at p. 555). Cf., also,
Schwarzenberger, op. cit., n. 55, p. 22 above, pp. 141-3.]
5 See the opinion of the Virginia Beach Round Table, in Wright, op. cit., n. 19,
p. 414 above, p. 182. For British practice, see McNair, op. cit., n. 16, p. 426
above, p. 390 et seq. For the case of the Japanese annexation of Korea, see
Perrinjaquet, Coree et Japon, 17 R.G.D.I.P., 1910, p. 532, at p. 545 et seq.
However, in the case of the Anschluss between Germany and Austria, there
is considerable opinion holding the union to be void on the ground of its
contravention of treaty obligations (above, p. 67).
' See Jones, State Succession in the Matter of Treaties, 24 B.Y.I.L., 1947, p.
360; Schwarzenberger, op. cit., p. 87.
7 See below, pp. 437-8.
8 [Jones, Full Powers and Ratification, 1946, p. 72, n. 5; Schwarzenberger, op.
cit., n. 79, p. 418 above, p. 62; Oppenheim, vol. I, p. 802.]
9 See above, pp. 417-9.
10 See discussion on Germany, p. 70 et seq. above.
The Application of the Doctrine 431
legalised.11 But it must be remembered that, assuming that pre-
scription is an accepted principle of international law, the process
would require undisturbed possession for a considerable length
of time.12 Until such conditions have been met, no valid title can
be acquired by the conqueror. It is doubtful 13 whether these
conditions will ever be fulfilled if protests and claims are being
kept up by the conquered State (if it still exists) and other States.
However this may be, it may be said that the doctrine of non-
recognition as applied to acquisition of territory does not of itself
invalidate a title otherwise valid, but merely deprives the con-
queror of the more convenient modes of consolidating his title,
which does not become valid until legalised.14
By making territorial changes more difficult, the doctrine of
non-recognition does not necessarily result in the fossilisation of
the territorial status quo." It only insists that peaceful means,
and not force, should be employed for the modification of existing
rights. When a de facto situation arises making the continued
maintenance of the existing legal order absolutely impossible, it
would still be open to the society of nations to modify its laws
by means of general recognition. The effect of non-recognition
is merely to hold as unchanged what is still undetermined,
and not a refusal to admit any change which has already become
definitive.
The non-recognition of a territorial acquisition would entail
the following legal consequences : the non-execution with respect
to the territory in question of treaties between the non-recognising
State and the former sovereign; impediments to the diplomatic
protection of nationals of the non-recognising State in that terri-
tory; and the non-application of guarantees such as Article 10
of the Covenant and the Pact of Paris, with respect to that
territory. It has been pointed out by Sir Arnold McNair in regard
to the first point, that the non-recognising State may have as
much to lose as the annexing State, and that the non-execution of
extradition treaties will benefit nobody but the alleged criminals.
"Moore, loc. cit., n. 52, p. 114 above, p. 436.
12 Oppenheim, vol. I, p. 527; Hall, pp. 143-4, 681; Moore, Digest, vol. I, pp. 293-7;
Schwarzenberger, op. cit., n. 55, p. 22 above, pp. 139-41.
"See Lauterpacht, p. 428.
14 Oppenheim, vol. I, p. 525.
"This criticism is raised in Williams, loc. cit., n. 35, p. 123 above, p. 310; same,
loc. cit., n. 90, p. 52 above, p. 788.
432 The Doctrijie of Non-Recognition
As regards the second point, it is said that the necessity of
negotiating with the local authorities for the protection of nationals
may make non-recognition unreal.16
It is not denied that a policy of non-recognition may cause
inconveniences and material losses to the non-recognising State.
These are the price a member of the society must pay for the
maintenance of its law.17 Such inconveniences and losses may
occur also in other circumstances, such as the military occupa-
tion of the territory of one State by another in time of war. It
has not been argued that the law of belligerent occupation should
be changed by conferring immediate title on the occupant, in
order to spare neutral States the inconveniences and losses they
now incur.
In fact, the conquest of a territory which is unconfirmed is
precisely equivalent to a case of belligerent occupation extended
into the time of peace.18 The occupant does not acquire the title,
not because the control is not effective, but because the ultimate
decision has not been reached.1* For this reason, third States are
bound to regard as unchanged the legal title of the ousted sovereign".
They may probably insist upon the application of former treaties
and laws, in so far as the occupant is not entitled to change them
according to the laws of belligerent occupation. On the other
hand, the occupant is entrusted with extensive powers and charged
with extensive responsibilities with regard to the occupied terri-
tory. The legal situation is generally defined by the laws of
belligerent occupation." Consular protection of nationals is still
possible, subject to the handicaps incident to all military
16 McNair, loc. cit., n. 20, p. 414 above, pp. 72-3. [See Langer (op. cit., n. 28,
p. 60 above) for difficulties concerning ' Manchukuo ' in this connexion
(pp. 70-2).]
17 See Garner, loc. cit., n. 23, p. 427 above, p. 686.
18 Woolsey, loc. cit., n. 17, p. 426 above, pp. 318-9. This is the view of the United
States. See instructions of State Department with regard to the French
occupation of the Ruhr, in which is outlined the rights and duties of foreign
occupants in time of peace (Hackworth, vol. I, pp. 146-8). See instances of
pacific occupation, above, p. 291, n. 13.
19 In the case of belligerent occupation, this critical point is reached when the
war comes to an end. In the case of illegal acquisition of territory, the period
of illegality will continue until the occupant has so consolidated his gains
that the prospect of dislodging him by the force of the society appears remote,
in which case a modification of the legal order would be called for.
20 See Hall, pp. 559-60; Keith's Wheaton, vol. II, pp. 791-2; Schwarzenberger,
op. cit., n. 55, p. 22 above, ch. 30. More extensive powers are conceded to
pacific occupants by Cavar6 (Quelques Notions Generates sur I'Occupation
Pacifique, 31 R.G.D.I.P., 1924, p. 339, at pp. 346-51).
The Application of the Doctrine 433
occupations.21 These factors show that non-recognition does not
create a legal no-man's-land in the occupied territory. The fact
that certain de facto relations were being carried on with the
unrecognised authorities in Manchuria22 is not an artificiality
which makes a mockery of the doctrine of non-recognition," nor
is it a de facto recognition which is compatible with the duty of
non-recognition.24 It is merely the ordinary maintenance of
permissible relations between a military occupant and third
States.25 A study of the law of belligerent occupation clearly
shows that there is no absolute incompatibility between the actual
loss of control and the retention of legal title. The contrary
view would be to regard every occupation as resulting in a
transfer of title.
§ 3. Treaties
If a treaty between two States should be in violation of a legal
right of a third State, is that third State entitled to invalidate the
treaty by means of non-recognition? Some writers answer this
question categorically in the affirmative.2'' A more restrained
view is held by some other writers. They maintain that a conflict
with an existing right does not ipso facto invalidate the treaty,
but merely gives priority to the earlier right.27 The offending
treaty will be enforceable if it is not opposed by the injured State.28
If treaties are mere contracts between States, these views would
no doubt be well in accord with the maxim pacta tertiis nee nocent
21 Both the British and Russian authorities have negotiated with the Japanese
authorities, in the capacity as military occupants, for the protection of their
rights in Manchuria (Pari. Deb., H.C., 5th ser., vol. 280, col. 1064; Cavar£,
loc. cit., n. 34, p. 17 above, p. 35).
22 See the relations recommended by the Advisory Committee of the League,
June, 1933 (Hill, op. cit., n. 10, p. 412 above, p. 455).
23 As suggested by Borchard (Wright, op. cit., n. 19, p. 414 above, p. 175).
24 As suggested by Lauterpacht (p. 431 et seq.).
25 See Langer, op. cit., pp. 70-2.
26 See numerous authorities cited in Harvard Research, Law of Treaties, 29
A.J.I.L., 1935, Supplement, p. 1025. Also Wright, loc. cit., n. 3, p. 411 above,
p. 346; Lauterpacht, p. 426; same, The Covenant as the Higher Law, 17
B.Y.I.L., 1936, p. 54, at p. 60. Roxburgh seems to hold a similar view, when
he says that the third State whose right is injured has a right of intervention
(International Conventions and Third States, 1917, s. 24.)
27 Vattel, op. cit., n. 14, p. 14 above, Bk. II, Ch. XVII, s. 315; Harvard Research,
loc. cit., p. 1024. [Cf., also, Judge van Eysinga's separate opinion in the
Oscar Chinn Case, (1934) Series A/B, No. 63, pp. 133-136.]
28 Harvard Research, loc. cit.. p. 1026.
28
434 The Doctrine of Non-Recognition
nee prosunt. The difficulty, however, lies in the circumstance
that treaties may often be the embodiment of rules of law and
modifications of existing rights, as well as constituting juristic
acts under the existing law. If we are to hold the view that
a treaty inconsistent with existing rights should be void or
should give way to those rights, there will be the danger
that the road to progressive international legislation by means
of treaties, to which many a rule of modern international
law owes its origin,29 will be blocked, and the development of
new rules will have to fall back entirely upon the evolution
of custom.
A view directly contrary to the above, such as that held by
Williams, is that a treaty in violation of a previous treaty does
not become void inter partes.™ This seems to be hardly com-
patible with his other view that an act or treaty in conflict with a
fundamental peremptory rule of international law is void ab
initio,*1 unless we are to exclude the possibility of establishing
fundamental peremptory rules of international law by means of
treaties.
A third view, advanced by Anzilotti, is that if States A and B
are signatories of treaty X, and later A concludes a conflicting
treaty Y with C, B may demand annulment of treaty Y, if C had
recognised treaty X. If C had not so recognised, B or C whose
treaty has not been executed can only claim reparation from A.
The argument is that, by ' recognising ' the treaty X, C undertakes
not to do anything incompatible with the existence of the treaty,
and, hence, treaty Y must be regarded as a treaty with ' objet
illicite ', voidable on demand of B.32 Following this principle,
two States, both parties to a multilateral treaty, cannot lawfully
enter into a treaty conflicting with that multilateral treaty.33 This
view seems also to receive the support of Lauterpacht, who
adduces authorities in English law in its favour.'4
It is doubted whether the ' recognition * of the previous treaty
merits such emphasis. If knowledge of the conflict is essential
28 See, for example, Schwarzenberger, International Law in Early English
Practice, 25 B.Y.I.L., 1948, p. 52 and op. cit., p. 1.
30 Williams, loc. cit., n. 35, p. 123 above, p. 280.
31 Ibid., p. 282.
32 Anzilotti, op. cit., n. 7, p. 14 above, vol. I, pp. 416-9.
33 Hill, op. cit., n. 10, p. 412 above, pp. 382-3.
34 Lauterpacht, p. 426; same, loc. cit., n. 26 above, p. 62, n. 1 ,
The Application of the Doctrine 435
to the illegality of the later treaty, why is not A's knowledge of
it sufficient to establish the illegality? It is said that the ' recog-
nition' is an undertaking by C to respect treaty X. But the
theory leaves wholly unexplained why C should be expected to
show more respect for its undertakings than A, who, by signing
treaty X, has certainly pledged itself to observe it.
What, then, is the principle for determining the validity of
treaties in conflict with existing obligations? The answer is
probably to be found in the distinction between two kinds of
obligations with which a treaty comes into conflict: simple
contractual obligations, and obligations arising from a peremptory
rule of law. In general jurisprudence, an act contrary to a per-
emptory rule of law is null and void, whereas one contrary to
a contractual obligation merely gives rise to a claim for damages,
and, under certain circumstances, the right to abrogate the
contract violated.35 This principle is believed to be equally
applicable in international law. International lawyers tend to
favour the contention that an act or treaty in conflict with a
fundamental, peremptory rule of international law is void.36
When an act or treaty conflicts with a previous contractual
obligation, the prior obligation takes precedence.37 Where the
performance required by the previous treaty is not carried out,
the injured party would be entitled to damages and, probably,
the right of abrogation.38 The subsequent act or treaty does not
ipso facto become void. This is particularly the case where the
subsequent treaty is ' transitory ' or ' dispositive ', creating a right
in rem, and the previous treaty creates only a right in personam,
in which case, while the subsequent treaty is still enforceable
in spite of the previous treaty, the previous treaty becomes unen-
forceable on account of the subsequent treaty. It is therefore
thought that an obligation of non-cession of territory does not
render invalid a treaty of cession.39 If both treaties create
35 Salmond, op. cit., 10th ed., p. 357; Holland, Elements of Jurisprudence, 1924,
p. 277; Jenks, Book of English Law, 1945, pp. 405-6.
36 Hall, pp. 382-3; Oppenheim, vol. I, p. 808; Keith's Wheaton, vol. I, p. 515;
Williams, loc. cit., p. 282; Schwarzenberger does not agree that the matter
is as unequivocal as this, op. cit., n. 55, p. 22 above, pp. 187-8.
37 Above, n. 27.
38 Above, p. 426, n. 19.
39 Baty, International Law in South Africa, 1900, p. 48; Virginia Beach Round
Table, in Wright, op. cit., n. 19, p. 414 above p 182 However, seven Latin
American States pledged themselves by Article 13 of the Contmental Treaty,
436 The Doctrine of Non-Recognition
obligations in rem, the general principle of priority of earlier
treaties would prevail.40
[Although it is generally true to say that a prior contractual
obligation takes precedence over a later commitment incompatible
with it, this is not always so. By Article 20 of the Covenant of
the League of Nations and Article 103 of the Charter of the
United Nations the parties to those instruments recognise the
superiority of the obligations therein contained over all other
obligations.]
While the principle can be thus simply stated, it may not
always be easy, in a given case, to say whether a particular act
or treaty is in conflict with a contractual obligation or with a
peremptory rule of international law, especially where the rule
in question is contained in a treaty. From the formal point of
view, there is hardly any difference between a treaty which creates
subjective relations and one creating a rule of law." Many writers
on international law deny the existence of such a distinction."
But other writers believe that such a distinction is both possible
and necessary.43 A traite-loi is one which provides for abstract,
general, objective and normative rules of conduct, in contrast
with the concrete, particular and subjective obligations provided
in a tralte-contrat. It possesses the character of a governing
principle for future acts, rather than the disposal of a particular
1856, to the non-cession of their territories and the non-recognition of such
cessions (Sharp, op. cit., n. 13, p. 418 above, p. 79). By the '21 -Demands' of'
1915, Japan imposed upon China the promise of non-alienation of certain
parts of the latter's territory (Group IV, and Group V, Article 6, MacMurray,
op. cit., n. 8, p. 412 above, vol. II, p. 1233), but there was no provision for non-
recognition.
40 See Costa Rica v. Nicaragua (1916), decided by the Central American Court
of Justice (11 A.J.I.L., 1917, p. 181); [but the Court declined to make any
comment upon the validity of the later treaty, "because the United States, a
party to that treaty, was not a party to the issue before the Court.]
41 The number of signatories is not a conclusive test (Starke, Treaties as a
' Source ' of International Law, 23 B.Y.I.L., 1946, p. 341, at pp. 342, 344-5).
42 Wright thinks that all treaties are equal; all are under customary international
law (loc. cit., n. 4, p. 421 above, p. 566. See, however, below, n. 43). See
similar view of Roxburgh, op. cit., s. 3; Hall, p. 8; Gihl, op. cit., n. 3, p. 421
above, pp. 47-53. On the other hand, it is argued by some other writers
that all treaties are law-making, as far as the parties are concerned (Lauter-
pacht, loc. cit., n. 1 above, p. 54; Oppenheim, vol. I, p. 26, n. 3, pp. 793-4;
Schwarzenberger, op. cit., n. 9, p. 418 above, p. 12). But see Oppenheim, vol. I,
p. 26, on the distinction between law-making and other treaties, and ibid., p.
807, where special superiority is conceded to the Charter of the United Nations.
43 Brierly, op. cit., n. 17, p. 15 above, pp. 58-60; Scelle, op. cit., n. 20, p. 15
above, vol. II, p. 331 et seq.; McNair, loc. cit., n. 87, p. 207 above, p. 100;
Wright, The Interpretation of Multilateral Treaties, 23 A.J.I.L., 1929, p. 94,
at p. 99; Starke, loc. cit., at p. 342.
The Application of the Doctrine 437
matter at hand, and is thought to transcend the maxim pacta
tertiis nee nocent nee prosunt.11 It is difficult to find a single
crucial test for a traite-loi, but it is believed that the ' governing
character ' of a traite-loi may be manifested in provisions regard-
ing capacity, procedure and prohibitions.
Capacity. — If a treaty were to modify the international
capacity of one of the parties, such as reducing it to a dependency
or protectorate/5 it would rule out the legality of all future treaties
between that party and third States which are inconsistent with
the new status. It is maintained by some writers that by Article 20
of the Covenant, members of the League of Nations undertook
to limit their capacity for international engagements not con-
sistent with the Covenant." The same may be said of Article
103 of the Charter of the United Nations.47
Procedure. — In every legal act, formal validity must be
regarded as essential. A legal act can be distinguished outwardly
only by its conformity to a prescribed procedure. Unless that
procedure is followed, there can be no legal act. A rule stipulating
a particular procedure would necessarily invalidate any act which
does not conform to its requirements. Article 2 of the Pact of
Paris in providing that international disputes should not be settled
" McNair, loc. tit., p. 113; authorities cited in Hall, p. 7, n. 1; Cobbett, vol. I,
p. 9, somewhat qualified at p. 10; Starke, Monism and Dualism in the Theory
of International Law, 17 B.Y.I.L., 1936, p. 66, at p. 73. Contra, Hall, pp. 8, 12;
Roxburgh, op. cit., ss. 65-6; Gihl, op. cit., pp. 52-63. It may be argued that
to adhere strictly to the principle of pacta tertiis nee nocent nee prosunt would
be to ignore the law-creating force of fact, expressed in the maxim ex factis
jus oritur. It is useless to insist upon a ' legal right ' from which the major force
of the society has definitely withdrawn its support, even though the extinction
of that right has not been assented to by the party in question. [In its Advisory
Opinion concerning Reparation for Injuries Suffered in the Service of the
United Nations (1949) the International Court of Justice disregarded the maxim
pacta tertiis nee nocent nee prosunt in construing the right of the United
Nations to sue a non-member : ' On this point, the Court's opinion is that
fifty States, representing the vast majority of the members of the international
community, had the power, in conformity with international law, to bring
into being an entity possessing objective international personality, and not
merely recognised by them alone', I.C.J. Reports 1949, p. 174, at p. 185.]
45 The precise distinction between a treaty for the limitation of capacity and a
traite-contrat may not be easy. The former is to renounce a right, the latter
a promise not to exercise it; the former is akin to conveyance, the latter to
contract (Baty, op. cit., p. 46 et seq.). It may be controversial whether the
illegality of the Anschluss should be attributed to the lack of capacity on the
part of Germany and Austria to effect a merger, or to the use of force by
Germany, or both. See above, pp. 66-7. See other doubtful cases, Oppenheim,
vol. I, p. 257, n. 3.
" Lauterpacht, loc. cit., p. 60.
•"Oppenheim, vol. I, pp. 806-7; Schwarzenberger, op. cit., n. 55, p. 22 above,
pp. 528-9; see also below, p. 438,
438 The Doctrine of Non-Recognition
except by pacific means, makes duress a vitiating circumstance
for treaties.48 A treaty not made through this peaceful procedure
cannot become a treaty according to law.
Prohibition. — A treaty which provides for a prohibition
against certain types of acts or treaties should take precedence
over those acts or treaties which it prohibits. This seems to be
the view of the ' Harvard Research ' in its Draft Convention on
the Law of Treaties." Article 20 of the Covenant of the League
of Nations and Article 103 of the Charter of the United Nations
make future treaties inconsistent with these two documents legal
nullities. Likewise, the Declaration of Paris would invalidate
any treaty between signatories of the Declaration concluded for
the purpose of reviving privateering.50
A treaty possessing any or all of the above characteristics
may be properly considered as a ' higher law ' which invalidates
incompatible obligations.51 Professor Lauterpacht, while admit-
ting that the Charter of the United Nations constitutes a superior
law over all other treaties,52 however, denies in an earlier work
that the League Covenant can be so regarded.53 Article 20 of
the Covenant provides, in addition to the obligation not to enter
into incompatible engagements, that members should take steps to
procure release from inconsistent engagements previously entered
into with non-members. It is argued by the learned professor that
the invalidation of future inconsistent engagements is merely the
application of the general principle of law that a previous
obligation invalidates a subsequent obligation in conflict with it.51
Assuming the correctness of this principle, it would follow that
the Covenant itself should become void, once it has been estab-
48 See also other treaties with similar provisions, above, p. 417. In another sense,
this Article of the Pact may also be regarded as a provision respecting capacity,
for the party under duress may be regarded as lacking a free will essential
to contractual capacity. It may also be regarded as a prohibitory provision.
49 Article 22(b), loc. cit., n. 26 above, pp. 661, 1016.
50 The recommendations of the International American Conference, April 18,
1890, contain the following article: 'Fourth, Any renunciation of the right
to arbitrate made under the conditions named in the second section (viz-, the
threat of war), shall be null and void ' (Hill, op. cit., p. 461). This may also
be regarded as a limitation on capacity, as well as a prohibition.
51 Treaties for general international settlement and international incorporation
are also generally regarded as law-making (McNair, loc. cit., pp. 112-7). They
are so because they contain, expressly or impliedly, the three elements men-
tioned in the text.
52 See his edition of Oppenheim, vol. I, pp. 806-7.
53 Lauterpacht, loc. cit., n. 26 above, p. 59.
54 See discussions on this view, above, pp. 433-4.
The Application of the Doctrine 439
lished that it is in conflict with an earlier right of a non-member.
This has never been thought to be the case. It appears to the
present writer that a treaty, which invalidates future obligations
inconsistent with it and yet is not itself invalidated on the ground
of inconsistency with a previous obligation, must be in the
character of a ' higher law '.
Although it may be possible to designate certain treaties as
law-making or as establishing a legal order, it is, however, not
necessary that every departure from it should be automatically
null and void.55 It may be possible that the particular provision
violated does not constitute a peremptory rule of law; or the
members of the international society, for reasons of public policy,
are not opposed to a change in the existing legal order and signify
their assent through recognition. This last-mentioned circum-
stance is a question of legislation, not of law.
This idea that a legal order has reality only when, and so
long as, it enjoys the support of the society is essential to the
understanding of the doctrine of non-recognition. The doctrine
assumes that such support exists under a given legal order.56 The
criticism that, by introducing the notion of duress into inter-
national law, there is danger that all future treaties of peace may
be repudiated at the liberty of the defeated State,57 fails to con-
ceive the doctrine as one with variable contents. The doctrine
has application only with respect to the legal order then existing.
A peace treaty at the end of a general international war inaugu-
rates a new legal order. The doctrine would then be used to
uphold this new legal order, and not to repudiate it.
Assuming that there is a ' higher law ' in the international
society and that it is determinable according to certain tests, the
question of application remains a difficult one, as long as an
international tribunal with compulsory jurisdiction is lacking. In
the absence of such a tribunal, the decision whether a law has
been infringed must necessarily rest with individual States. This
situation cannot be criticised 58 as having placed third States above
the law-breaking State, which is by hypothesis their equal in law.
66 See cases of violations of treaties in Williams, loc. cit., pp. 280-1; Myers,
Violation of Treaties, 11 A.J.I.L., 1917, p. 794, at p. 804 et seq.
56 See above, pp. 421-2.
"Lowell, Manchuria, the League and the United States, 10 Foreign Affairs,
1932, p. 351, at p. 368; Borchard, in Wright, op. cit., p. 158.
58 Williams, loc. cit., p. 282.
440 The Doctrine of Non-Recognition
The practice of States to determine their own rights under inter-
national law is not a recent development.59 What is new is only
that the right claimed is a public right of a member of the society,
instead of a private right of States against one another.80 The
judgment by third States may perhaps be not as impartial as by
an international tribunal, yet it would at least be more disinter-
ested than the judgments of the parties to the dispute. Moreover,
justice can be better guaranteed if decisions should be taken in
conjunction by a large number of third States, such as in the
Assembly of the League of Nations or the General Assembly
of the United Nations. The doctrine of non-recognition, coupled
with a greater integration of international society, would certainly
contribute to bringing international law from the stage of ' weak '
law into a more mature development.
5°Peaslee, loc. cit., n. 8, p. 424 above, p. 328; Oppenheim, vol. I, pp. 13-4.
60 See Jessup, op. cit., n. 2, p. 416 above, p. 2.
CHAPTER 32
NON-RECOGNITION AS A SANCTION
In maintaining the proposition that an act or treaty in conflict
with a peremptory rule of international law is void, it is not
suggested that the mere stigmatisation as illegal is sufficient to
vindicate law without further effort. Non-recognition as a sanc-
tion exists only in legal concept. It does not alter a situation of
fact, unless it is accompanied by the use of physical or moral
force. It is an illusion that non-recognition can be a substitute
for other more vigorous measures in the upholding of law.1
Critics of the doctrine of non-recognition are at their strongest
when they contend that non-recognition alone, unsupported by
other sanctions, is ineffective.2 But, on the other hand, any other
sanction of law must be applied upon the assumption that the
act or treaty which forms the object of the sanction is illegal,
and has not yet been legalised. In other words, non-recognition
forms the basic condition for the application of other sanctions.
The function of non-recognition is to hold the legal situation in
suspense, pending a definitive settlement which may result either
in the restoration in fact of the status quo ante, or in the adjust-
ment of law to the changed situation of facts. In the former
situation, the doctrine of non-recognition would be fully justified,
as it preserves the legal rights and duties of the parties. In the
latter case, a change of law indicates that the doctrine of non-
recognition has exhausted its usefulness acquired under the
pre-existing legal order.
It has been a controversial question whether non-recognition
itself constitutes a form of sanction. Though ineffective in the
1 Such an illusion seems to have been entertained by the United States. See
the speech of Acting Secretary Castle, May 6, 1932, quoted in Hill, op. cit.,
n. 10, p. 412 above, p. 418; Middlebush, n. 21, p. 414 above, p. 46; Wallace,
How the United States 'Led the League' in 1931, 39 American Political
Science Review, 1945, p. 101, at pp. 104-5.
2McNair, loc. cit., n. 20, p. 414 above, pp. 71, 74; Williams, loc. cit., n. 90,
p. 52 above, pp. 790-2; same, loc. cit., n. 6, p. 422 above, p. 128; Borchard in
Wright, op. cit., n. 19, p. 414 above, p. 173; Moore, loc. cit., n. 52, p. 114 above,
p. 436; Hill, op. cit., p. 397.
441
442 The Doctrine of Non-Recognition
sense that it cannot be used to dislodge a wrongful occupant
from a piece of territory and reinstate the rightful owner, non-
recognition, by its incidence, may yet cause sufficient inconveni-
ences and embarrassments to the wrongdoer to compel him to
seek legalisation at considerable cost. The determined non-
recognition by a large number of States would no doubt produce
a deterrent effect upon would-be offenders. The inconveniences
may partake of a legal, political, economic or moral character.3
The interflow of commerce between the law-breaking State and
the non-recognising States, even if not interdicted, would certainly
be impeded for lack of security and governmental assistance.
The territory in dispute would be open to reconquest by the
injured State without infringement of law.4 The fact of the refusal
to recognise amounts in fact to a moral indictment.5
The application of the doctrine of non-recognition is naturally
accompanied by a certain measure of uncertainty in international
legal relations,6 as it keeps open a gap between law and fact.
But it is the violation of the law, and not its upholding, which is
the cause of this uncertainty. The very principle of certainty
would be jeopardised, if States were assured, or were encouraged
to believe, that every act of illegality would receive prompt
legalisation. For this reason, if for no other, more forceful means
of enforcing law against possible violations must be regarded as
the true guarantee of certainty and stability. But every effort at
the vindication of law and the restoration of injured rights would
be lost, unless in the meanwhile there were no legalisation of the
illegal act. Non-recognition, standing alone, is indeed ineffective
as a sanction, but it is indispensable for the application of any
other form of sanction.
It cannot be denied that the application of the doctrine of
non-recognition has not been attended by unqualified success.
But the failure is due not so much to the doctrine itself, as to
the weakness of the law behind it. Although we should not
minimise the basic difference between the structures of inter-
3Langer, op. cit., n. 28, p. 60 above, p. 116; speech of M. Litvinov, Soviet
delegate, at the League of Nations Council, May 12, 1938 (L.o.N. Off. J., 1938,
p. 340).
4 See above, p. 432.
5 Williams, loc. cit., n. 35, p. 123 above, p. 310; Acting Secretary Castle's speech
quoted in Hill, op. cit., p. 417.
" For criticism of the doctrine of non-recognition on this score, see Moore, loc.
cit., p. 436; Middlebush, loc. cit., p. 54; Borchard in Wright, op. cit., p. 157.
Non-Recognition as a Sanction 443
national and intra-national communities,' yet the human society
is painfully aware of the fact that greater international integra-
tion after the pattern of municipal systems is the only alternative
to continuous war and the eventual extinction of civilisation,
if not, indeed, of the human race. The doctrine of non-recog-
nition, which postulates the responsibility of every State for the
maintenance of the legal order, signifies the conviction of the
States that the law exists. The failure of its application in any
particular instance is strong argument that greater, and not less,
collectivisation and strengthening of the authority of international
law is needed for the peaceful enjoyment of life in the world. To
advocate the view that, because in the past the international
society has been too weak to enforce its will upon law-breakers,
so law-breaking in future shall receive immediate acknowledg-
ment of the society is a policy of despair and a condemnation
of international society to a perpetual state of anarchy. On the
other hand, it must always be borne in mind that the usefulness
of the doctrine is limited by the margin of superiority of the force
of the society over would-be offenders. Forlorn and hopeless
clinging to the empty formula of non-recognition after the social
force has been withdrawn from its support would merely keep
alive false hopes without the prospect of realisation, and would
only bring disrepute upon international law. While it is main-
tained that the doctrine of non-recognition is indispensable to
international legal order, it must also be realised that it is the force
which sustains this international legal order that gives flesh and
bones to the doctrine. The application of the doctrine must
therefore always be kept within the limits of the effective strength
of the society. The great problem is, in the last analysis, the
building up and the strengthening of this social force.
' See Briefly, The Outlook for International Law, 1944, p. 39 et seq.
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INDEX
Acheson, D., 117, 227
Act of State, 147
Acts Short of Recognition, 199-201,
214, 216-21, 406-7
Adams, J. Q., 82, 200, 228, 343
Adherence to Treaties, 204-5, 221
Afghanistan, 197
Al-Attasi, H., 116
Albania, 65, 66, 103, 115, 126, 191, 200,
212,265,291,300
Allessandri, A., 1 14
Algiers, 192, 232
Altamirano, General, 114
A1V3T67 .A 17
American Civil War, 309-1 1, 336, 342-5,
379-80, 384
American War of Independence, 308-9,
337
Anarchy, 66
Anderson, C. P., 113, 426
Andrade, General, 114
Annexation, 70-2, 292, 295, 430-3
Anschluss, 67-70, 238, 262, 289, 430, 437
Anzilotti, D., 14, 17, 18, 21, 22, 24, 43,
51, 74, 117, 189, 213, 427, 434
Argentina, 435
Arias, H., 117
Armenia, 101, 205, 213, 261, 266, 279
Attlee, C. R, 119, 196, 199, 218
Austin, J., 145, 291
Austria, 56, 57, 65, 67-70, 74, 100, 107,
238, 262, 292, 412, 437
Austria-Hungary, 56, 57, 102
Balossini, C. E., 300
Baltic States, 42, 60, 65, 83, 157, 160-2,
192, 211, 412
Baty, T., 15, 40, 54, 56-7, 63, 66, 78,
99-100, 106, 113, 114, 117, 120,
122, 124, 191, 239, 261, 268, 272,
280, 288, 291, 293, 296, 299, 323,
435, 437
Bayard, T. F., 403
Beale, J. H., 167, 364, 391, 399
Belgium, 63, 199, 200, 208, 239, 265,
291, 292, 297, 420
Belligerency, 54, 216, 230, 296, 303, 304,
333-97, 398-9, 429
Termination of, 395-7
Belligerent Community, 34, 140, 181,
194, 216, 217, 289, 291, 292-3,
303-6, 333, 336, 352, 353
Belligerent Rights and Insurgency, 369-
71
Belligerents, 140, 303-4, 336, 349, 354,
358, 384
Bentivoglio, L. M., 292
Berdahl, C. A., 226, 227, 228, 229, 278
Berlia, G., 373
Bernard, M., 107, 217, 271-2, 343, 356,
357-8, 367, 376, 377, 379, 384,
392
Berne, City of, 135
Beus, J. G. de, 345, 346
Bilateral Treaties, 192-6
Bismarck, O. von, 66, 122, 194, 195
Bisschop, W. R., 117, 122, 129
Blockade, 338-41, 342, 346, 347, 348,
354, 358, 371, 372, 373, 375-6,
377-8, 384-7, 391, 395, 405
Bluntschli, J. C, 14, 27, 36, 37, 50, 60,
61, 66, 97, 226, 231, 306, 336, 356
Boeck, C. de, 225
Bolivia, 107, 216, 221, 222, 265
Bonfils, H., 430
Bonham, M. L., 200
Borchard, E. M., 48, 52, 99, 111, 130,
136, 138, 141, 145, 149, 159, 161,
240, 270, 272, 273, 291, 317, 327,
328, 373, 390, 414, 433, 441, 442
Borel, E., 57, 63, 430
Borno, L., 1 14
Brazil, 81, 216, 220, 230, 265, 346, 371,
385, 390, 398, 404, 406, 407
Brierly, J. L., 15, 19, 20, 23, 24, 27-8,
34, 39, 52, 55, 57, 61, 275, 284,
285, 364, 366, 379, 422, 436, 443
Briggs, H. W., 46, 195, 208, 216, 270,
280, 285, 288, 291, 323, 412
British Commonwealth, 86-8, 213
Brown, P. M., 48, 64, 65, 102, 127, 291
Buchanan, J., 82, 228
Buenos Aires, 198, 217, 220, 370, 403
Bulgaria, 83, 191, 212, 222, 267, 429
Burma, 197
Bushe-Fox, P. L., 136, 232, 312, 313
Bustamante, J. L., 116
Byelorussia, 215
Byrnes, J. F., 77
Calvo, C, 99, 337, 366, 404
Cambodia, 58-9, 192, 283
Canada, 86, 213, 215-6
Canning, G., 6, 32, 44, 45, 57, 80-1, 85,
118-9, 192, 220, 272, 340, 354-5,
370
Cass, L., 121, 342, 383
Cassin, R., 297, 299
Cavaglieri, A., 17, 23, 24, 43
Cavare, L., 17, 32, 34, 49, 245, 291, 414,
429, 432, 433
Cecil, Lord, 212
453
454
Index
Central America, 108-10, 113, 196
Ceylon, 88, 196, 215
Chamorro, General, 109, 110, 114
Chauvelin, 106-7
Chen, S. T., 35
Cheshire, G. C, 168
Chile, 114, 136, 200, 202, 232, 278, 313,
317, 353, 384, 385, 391, 401,
406-7
China, 36, 44, 50, 112, 116, 117, 119-20,
122, 124, 125, 195, 196, 199, 214,
217-8, 219, 226, 227, 229, 235,
260, 347, 358, 378, 386-7, 391,
412 427
Communist, 50, 112, 116, 117, 119-
20, 122, 124, 125, 196, 199, 214,
217-18, 227, 235, 260, 347, 358,
378, 386-7.
Civil Commotion, 159
Civil War, 34, 59-60, 66, 99-101, 136,
216, 231, 261, 292, 303, 308^107,
429
Clay, H., 82, 227
Clayton, J. M., 228
Cleveland, G., 403
Cobbett, P., 15, 245, 404, 437
Colby Note (1920), 42
Collective Recognition, 221-3
Colombia, 41, 107, 121, 196, 206, 210,
216, 233, 261, 312, 313, 334, 400,
402, 403, 404
Colonial Office Statement, 251-2
Commercia Belli, 392
Concert of Europe, 36, 105
Concession Theory, 333-5, 336, 352,
365, 369-70, 380, 383, 395
Conditional Recognition, 56, 265-9,
280-2
Conditions for Recognition, 5, 54-62,
281, 283, 364-8
Condominium, 72
Confederacy, The, 159, 200, 217, 274,
309-11, 315-6, 325-6, 344, 347,
357, 358, 366, 367, 376, 379-80,
385, 392, 394, 395
Conference, Participation in, 201-4
Congo Free State, 30, 192, 199, 201, 228,
265,411
Connick, L., 171
Conquest, 65-6, 291, 415, 430-3
Constantine, King, 115
Constitutionalism, 107-13, 414
Constitutive Theory, 3-4, 14, 16, 17-8,
30-2, 36, 38, 39-51, 62, 75, 77,
86, 88, 92, 103, 186, 190, 192, 193,
195, 203-4, 213, 259-61, 333, 334,
355, 356-7
Consular Representatives, 45, 198-201,
217-8, 278
Continuity of States, 65-74, 97-104,
125-6, 136-7, 146, 185, 214,
286-7, 323-32
Contracts, 163-4
Control Council of Germany, 73
Corbett, P. E., 304, 305, 351
Corporations, Status of, 152-7
Corwin, E. S., 225
Costa Rica, 108, 109, 113^, 126, 146,
148, 212
Coup d'Etat, 108, 109, 278
Courts, Function of, 88-93, 166-71,
179-82, 231, 232-55
Crane, L. F., 67
Cretan Revolt, 334, 364, 384, 390
Croatia, 58
Cuba, 57-8, 102, 108, 196, 226-7, 291,
346, 364, 365, 366, 384, 389, 390,
392, 398, 400
Cumbo, H. F., 76
Cyrenaica, 299
Czechoslovakia, 56, 64, 65, 66, 69, 90-1,
192, 200-1, 265, 279, 291-2, 297,
412, 428
Dana, R. H., 336, 363, 367
Danzig, 201
Deak, F., 254
Debellatio, 72, 430
Declaratory Doctrine, 117-29
Declaratory Theory, 3-5, 8-9, 14^7, 18,
41, 46, 47-9, 51-2, 54, 62-78, 79,
83, 84, 89, 90-3, 103, 121, 128,
133^, 186, 190, 193, 204, 214,
259, 261, 333, 334, 335-6, 343^1,
355, 380, 383, 413, 415
De Facto Government, 146-9, 153, 160,
177-8, 220, 236, 237, 272, 273-7,
290-300, 307-32
De Facto Recognition, 45, 84, 121, 123,
200, 234-5, 261, 267-9, 270-300
De Factoism, 82-3, 84, 92-3, 105, 117-
29, 150, 186, 249-50, 415
De Facto and De Jure Recognition
Distinguished, 277-91
DeJure Government, 121, 145, 236, 238,
263, 272, 273-7, 278, 290-300,
310, 323, 327
DeJure Recognition, 123, 261, 268, 270-
300
Delayed Recognition, 51, 54
Democratic Test, 122-4
Denmark, 285, 288, 337
Dennis, L., 109, 110, 113
Dependencies, 58, 251-3
Derby, Lord, 119
Despagnet, F., 225, 430
Diaz A 109
Dickinson, E. D., 101, 138, 140, 141,
151, 152, 153, 154, 155, 156, 161,
162, 164, 165, 170, 231, 239, 335,
385
Diplomatic Relations, 16, 33, 34-5, 45,
171, 186, 190-1, 196-8, 215, 279,
285-7
Severance of, 138, 143-4, 214, 260-1
Disarmament Conference, 203
Disavowal of Recognition, 230, 261, 262
Discontinuity of States, 101
Index
455
Discretionary Character of Recognition,
47, 48, 49, 50-2, 55, 118, 352,
353, 355, 356, 362, 363, 395, 413
Dismemberment of States, 56-7
Divorce, 162-3
Dobrin, S., 77, 224
Domestic Jurisdiction, 111-2, 114, 303
Dominican Republic, 108, 291, 385
Dominions, 86-8, 213
Doukas, K. A., 49, 138
Drucker, A., 296
Dumbauld, E., 387, 390
Duty of Non-Recognition, 416-9
Duty to Recognise, 47, 50-4, 82, 118,
349, 352-63
Ecuador, 108, 195, 200, 202, 218
Eden, A., 68, 200, 336, 359, 361
Effective Government, 57-8, 281
Effects of Recognition, 48, 74, 77-8, 80,
103, 133-86, 285
Egypt, 191, 208, 214, 217, 265
Eire, 86, 87, 97, 101, 151, 215, 233, 308,
324
Eldon, Lord, 135-6, 167, 240
Enemy Status, 151
Erich, R, 15, 16, 30, 37, 46, 54, 58, 66,
78, 100, 103, 186, 189, 213, 214,
259, 261, 270, 279, 281, 282, 288,
290, 334, 418
Estonia (and Estonian National
Council), 140-1, 157, 161, 164,
167, 180, 182, 200, 221, 234-5,
250, 279, 281, 284, 318
Estrada Doctrine, 128
Ethiopia, 42, 64-5, 220-1, 262-4, 276,
277, 284, 287, 294, 296, 412
Evarts, W. M., 216
Evatt, H. V., 125
Exchange of Notes, 193, 194
Executive Statements, 70-1, 173, 179,
181, 182, 183, 225, 232-44, 248-
55
Exequaturs, Consular, 199-201, 278
Ex Factis Jus Oritur, 413^4, 420-2, 437
Express Recognition, 189-90, 191-2
Eysinga, W. J. M. van, 433
Fachiri, A. P., 168
Fauchille, P., 15, 16, 18, 32, 52, 55, 97,
111, 117, 124, 189, 195, 212, 213,
278, 288, 298, 335, 364, 365, 368,
399, 418
Federal Republic of Germany, 45, 65
Federal States, 224-5, 253
Feller, A. H., 148, 250, 253, 329
Fenwick, C. G., 426
Fiji, 198
Finch, G. A., 291
Finkelstein, M., 225
Finland, 58, 62, 102, 191, 222, 262, 266,
279 287
Fiore, P., 15, 16, 32, 53, 60, 66, 97, 126,
129, 304, 306, 356, 373, 430
Fish, H., 315, 316, 343, 353, 355, 366,
402
FitzGerald, R. C, 87
Foreign Enlistment Acts (1819/70), 347,
389-90
Foreign Office Statement, 70-1, 173, 179,
181, 182, 234-6, 240, 247, 248-52,
275-7, 285-6, 319, 321, 323
Forsyth, J., 82, 366
Fraenkel, E., 291
Fraenkel, O. K., 135, 138, 140, 152, 169,
225,231
France, 66, 97, 98, 106-7, 118-9, 121,
122, 146, 216, 218, 220, 225,
240-1, 262, 272, 299-300
Free French, 297
Freeman, A. V., 292, 295
French Provisional Government, 286
French Revolution, 105, 106-7, 120,
217-8
French Union, 58-9, 283
Freund, H., 101, 164, 168
Friedlander, L. M., 212, 222
Friedmann, W., 70, 71
Frontiers, 56, 266
Garner, J. W., 67, 226, 266, 289, 291,
292, 347, 356, 367, 368, 377, 382,
398, 427, 432
Gemma, S., 40, 192, 356
Genoa Conference (1922), 101
Georgia, 211, 282
Germany, 45, 200-1, 224, 238, 262, 267,
292, 294, 359, 403, 437
Post-1945, 65, 70-4, 193, 287
Gihl, T., 421, 436, 437
Goebel, J., 15, 18, 37, 54, 62, 76, 79, 85,
105, 106, 113, 117, 120, 124, 227,
267, 373, 420
Gooch, G. P., 411, 429
Goodhart, A. L., 27
Goodrich, L. M., 203, 210, 215, 418, 427
Government
De facto, 145, 146-9, 153, 160,
177-8, 220, and see De Facto
Government
De jure, 121, 145, and see De Jure
Government
Effective, 57-8, 66
Recognition of, 97-129
Governmental Acts, 312-7
Graham, M. W., 43, 56, 107
Grant, U. S., 82-3, 314-5, 346, 364, 366,
400
Greece, 63, 115, 123, 195, 220, 292, 297,
339-41, 370, 384, 390, 391
Green, L. C, 42, 56, 57, 66, 73, 89, 120,
126, 141, 148, 149, 159, 171, 193,
211, 215, 239, 308, 330
Gros, A., 72, 74
Gross, L., 77, 300
Grotius, H., 97, 105, 111, 271, 336
Grouber, A., 162, 164, 167
456
Index
Guatemala, 108, 109, 114, 200, 234, 312
Guggenheim, P., 17
Habicht, M., 168, 170, 243
Hackworth, G. H., 37, 56, 59, 67, 83,
86, 98, 100, 101, 102, 108, 109,
110, 113, 114, 115, 116, 120, 122,
123, 124, 126, 127, 143, 191, 192,
193, 195, 196, 198, 199, 200, 201,
203, 205, 207, 208, 216, 217, 218,
220, 221, 222, 226, 229, 261, 265,
266, 267, 279, 286, 290, 315, 316,
346, 347, 386, 388, 390, 403, 404,
405, 411, 426, 432
Haile Selassie, 263, 287, 296
Haiti, 100, 114, 116, 146, 216, 220, 228,
384, 385, 400, 402
Halifax, Lord, 64, 262, 361
Hall, W. E., 14, 18, 52, 55, 57, 60, 62,
79, 97, 99, 100, 111, 189, 198, 200,
218, 265, 274, 278, 291, 292, 304,
305, 325, 335, 352, 353, 356, 362,
365, 366, 371, 373, 376, 380, 381,
383, 392, 393, 396-7, 404, 426,
431, 432, 435, 436, 437
Halleck, H. W., 15, 26, 111, 356
Hambro, E., 203, 210, 215, 418, 427
Harcourt, Sir William, 59-60, 62, 86,
356
Harding, Sir James, 314
Hartmann, P., 298
Hatschek, J., 51
Hayes, A., 141
Hegel, G. W. F., 14, 18
Hejaz and Nejd, 83, 101
Heligoland, 423, 425
Hershey, A. S., 18, 19, 192, 278, 306,
335 382
Hertslet, E., 21, 105, 208, 265
Hervey, J. G., 77, 90, 135, 138, 140, 141,
174, 175, 186, 234, 242, 275,284
Hesse Cassel, Prince of, 146
Higgins, A. P., 28, 71, 100
Hill, C, 412, 429, 430, 433, 434, 438,
440,442
Hill, D. J., 121
Hobza, A., 30, 64
Holland, T. E., 19, 27, 245, 246, 366,
435
HoltzendorfF, F. von, 111
Holy Alliance, 105-6
Holy See, 76, see also Vatican City
Honduras, 108, 109
Hoover, H., 110
Huberich, C. H., 292
Hudson, M. O., 28, 98, 137, 138, 153,
154, 159, 160, 164, 165, 171, 175,
184, 193, 202, 203, 204, 206, 207,
208, 209, 210, 211, 213, 233, 234,
237, 238, 242, 243, 308, 317, 334,
335 403
Huerta, General, 108, 112, 114, 115-6,
148-9, 217, 267, 329, 331-2
Hughes, C. E., 83, 127
Humphrey, J. P., 18, 25
Hungary, 57, 100, 102, 220, 226, 228
Hurst, Sir Cecil, 26
Hyde, C. C, 16, 18, 25, 52, 60, 62, 77,
97, 111, 116, 117, 122, 123, 192,
214, 225, 266, 305-6, 335, 382,
398-9, 401, 404, 405-6
Iceland, 192
Idelson, V. R., 167
Immunity
from legal process, 140-4
from suit, 140-2
of property, 142-4
of sovereign, 233, 251-3
Implied Recognition, 86, 189, 190, 192,
193-6, 200, 202-16, 234, 254, 278,
279, 286, 348, 382-3, 391-3
India, 57, 87, 88, 97, 100, 197, 213, 215,
216
Provisional Government of Free, 42
308
Individuals, Rights of, 150-65, 331
Indonesia, 223
Institute of International Law, 15, 52,
78, 129, 170, 178, 183, 185, 189,
261, 266, 279, 280, 364, 371,
372-3, 381, 392, 395, 401
Insurgency, 360, 398-407
Insurgents, 272, 289, 303, 308, 313, 314,
316, 319, 327-32, 334-5, 337, 338,
353, 360, 362, 364-5, 366, 368,
369-71, 372, 373, 374-5, 378, 385,
391-2, 393, 402
as pirates, 233, 334-5, 338, 339,
346, 354, 402-5
International Conferences, 201-4
International Court of Justice, 223
International Law,
municipal courts and, 244-7
objective, 423-8
obligatory character, 13-29
International Law Commission, 129-30,
. 171, 401
International Obligations, Fulfilment of,
124-7
International Organisations, Member-
ship of, 210-6
International Outlawry, see Outlawry
International Personality, 15-6, 30-9,
42-3, 53-4, 62-3, 80, 97-8, 103,
129, 304-6, 356, 437
International Society, 32-3, 35-7, 40, 42,
53, 201, 351, 357, 420-2, 423,
425-8, 440, 443
Ionian Islands, 340, 370, 384
Ireland, Republic of, see Eire
Irish Free State, see Eire
Israel, 45, 47, 56, 58, 84, 101-2, 123,
192, 198, 208, 213, 214, 215-6,
219, 279, 285, 286
Italy, 34, 76, 100, 194, 195, 220-1,
262-4, 276, 277, 284, 287, 294,
392
Index
457
Jackson, A., 82, 228
Jaffe, L., 15, 16, 77, 85, 89, 100, 136,
141, 156, 167, 191, 194, 237, 241,
244, 313, 314, 355, 389
Jansma, K., 295
Jefferson, T., 103, 113, 120, 122, 127, 216
Jeffersonian Doctrine, 82, 103, 110
Jellinek, G., 14, 23, 33
Jenks, C. W., 211
Jenks, E., 435
Jennings, R. T., 70, 71, 72, 73
Jennings, Sir W. Ivor, 87
Jessup, P. C, 22, 84, 112, 122, 128, 221,
222, 239, 254, 255, 307, 346, 378,
398, 416, 426, 427, 440
Jones, J. M., 147, 175, 178, 430
Judicial Opinions, 88-93, 166-71, 179-
82, 231
Judicial Self-Limitation, 88-9,92, 133,
139, 177, 183^, 225, Xfe, 237,
241, 247
Kalinin, M. I., 195
Keeton, G. W., 20
Keith, A. B., 325, 326
Kelantan, 251-2
Kellogg Pact (1928), 203, 205, 207-8,
210
Kelsen, H., 14, 15, 17, 21, 40, 43, 47-9,
51, 54, 55, 72, 73, 74, 203, 213,
259, 261, 270, 427
Kent, J., 356
Korea, 102, 192, 430
Korovin, E. A., 101
Krabbe, H., 20, 27
Krassin, L. B., 195, 248, 285-6
Kuhn, A, K., 254, 298
Kunz, J. L., 17, 18, 21, 32, 43, 124, 356
Lachs, M., 295, 296
Lalive, J. F., 379
Landon, P. A., 337, 350
Langer, R., 60, 65, 66, 67, 68, 69, 129,
161, 173, 182, 204, 220, 221, 238,
262, 292, 299, 412, 417, 418, 432,
433, 442
Laos, 58-9, 192, 283
LaPradelle, A. de, 328, 353
Laraaude, F., 123
Laserson, M. L., 60, 289
Latin America, 45, 57, 79-82, 226, 228,
315
Latvia, 161, 221, 267, 287
Lauterpacht, H., 14, 16, 18, 21, 22-3,
24, 26, 27, 29, 33, 34, 40-1, 43-5,
50-4, 55, 60, 63, 64, 67, 71, 74-6,
84, 91, 102, 111, 118, 123, 130,
152, 161, 175, 178-9, 190, 191,
192, 193, 194, 195, 196, 198, 200,
202, 204, 207, 209, 213, 220, 221,
222, 231, 234, 236, 250, 259, 260,
262, 265, 266, 267, 269, 270, 275,
277-8, 279, 280, 281, 283, 284,
285, 286, 287, 288, 290, 297, 323,
334, 336, 338, 339, 341, 342, 349,
355, 356-7, 360, 361, 364, 366,
373-4, 375, 379, 382, 384, 385,
386, 390, 391, 392, 398, 399, 400,
404, 405, 407, 411, 414, 417, 418,
420, 424, 426, 431, 433, 434, 436,
437, 438
Law, R., 286
Law-abidingness, 61-2
Lawrence, T. J., 14, 35, 39, 51, 189, 207,
306, 334
League of Nations, 64, 67, 68, 86, 205,
210, 211-5, 222, 289, 305, 306,
379, 417-8, 440
Lebanon, 215
Legal Nature of Recognition, 41, 50-2,
62,75
Legal Process, Immunity from, 140-4
Legislation by Belligerent Community,
317-23
Legitimacy, 105-16, 118, 124, 271
Lemkin, R, 289, 291, 292, 295, 299
Le Normand, R., 14, 16, 17, 23, 30, 31,
32, 33, 35, 40, 43, 51, 55, 56, 60,
61-2, 63, 111, 117, 124, 129, 130,
189, 200, 218, 225, 226, 239, 261,
268, 269, 278, 283, 305
Liberia, 228
Liechtenstein, 59
Limited Recognition, 193, 215
Lincoln, A., 348, 376, 384
Lippmann, W., 112, 414
Lipstein, K., 159, 168, 249
Liszt, F. von, 14, 27, 31, 39, 51, 54
Lithuania, 56, 157, 266
Litvinov, M., 195
Lloyd George, D., 86
Londonderry, Lord, 80
Lorimer, J., 15, 35, 40, 52, 55, 59, 60,
62, 66, 111, 296, 356, 359, 392
Louis Napoleon, 220
Louter, J. de, 16, 18, 52
Lowell, A. L., 440
Lushington, S., 341, 404
Luxembourg, 59, 63, 295, 297
Lyons, A. B., 71, 225, 232, 234, 235,
238, 240, 249, 250, 253, 254, 255,
298
McCorkle, S. A., 107, 108, 121, 124, 126,
227
McKinley, W., 346, 366, 382
Mackintosh, Sir James, 80
McMahon, J. L, 110
MacMurray, J. V. A., 412, 436
McNair, Sir Arnold D., 22, 57, 64, 102,
118, 130, 207, 225, 234, 242, 248,
274, 282, 288, 292, 295, 296, 298,
307, 318, 348-9, 353-5, 356, 360,
361, 366, 373, 374, 386, 389, 405,
412, 414, 418, 420, 421, 424, 425,
426, 427, 430, 431-2, 436, 437,
438, 441
458
Index
Maine, Sir Henry, 27
Mallory, D., 82
Malmesbury, Lord, 118-9
' Manchukuo,' 37, 42, 58, 75-6, 205, 290,
296, 429, 432, 433
Manchuria, see ' Manchukuo '
Mann, F. A., 71, 72, 73, 242, 243, 298
Manning, W. R, 342, 405
Marriage, 162-3
Marshall, Chief Justice, 240-1
Martens, G. F. von, 111, 117, 392
Maximilian, 199, 219, 299, 316
Metternich, Count, 340
Mexico, 81, 97-8, 108, 109, 110, 112,
115-6, 118, 120, 121, 125, 126,
127, 128, 147-9, 152, 174, 195,
199, 211, 216, 217, 220, 229, 230,
267, 286, 299, 315, 317, 328-32,
342, 345, 385, 402
Middlebush, F. A., 414, 441, 442
Miguel, Dom, 119, 120
Military Occupation, 63^1, 289, 290,
291-300, 430, 432-3
Modes of Recognition, 189-255, 281-2,
369-94
Mongolian People's Republic, 215
Montenegro, 222, 297 •
Moore, J. B., 15, 16, 18, 34, 42, 46, 54,
58, 77, 82, 83, 85, 97, 100, 107,
110, 114, 120, 121, 122, 124, 126,
145, 146, 178, 186, 191, 192, 195,
196, 198, 199, 200, 216, 217, 219,
220, 225, 226, 227, 228, 229, 230,
233, 245, 261, 263, 265, 278, 282,
299, 307, 315, 316, 317, 326, 328,
330, 335, 337, 339, 341, 342, 343,
344, 346, 347, 355, 358, 364, 365,
366, 367, 371, 374, 376, 382, 384,
385, 391, 392, 395, 398, 400, 401,
402, 403, 404, 405, 406, 407, 414,
417 426 431 441 442
Multilateral Treaties', 20l', 204-11, 221
Myers, D. P., 440
Nationality, 150-2
Natural Law, 18, 26-9
Navigation Act (1822), 227-8
Nebolsine, G., 169
Netherlands, 63, 294, 297-8
Neutrality and Insurgents, 313-4, 336,
338-41, 357-8, 362
Neutrality Legislation, 387-90, 401-2
New Grenada, 313^4, 385
Nicaragua, 108, 109, 114, 126, 174, 202,
218, 230, 261, 265, 385, 404
Nicol-speyer, A., 292
Nielsen, F. K., 272, 307
Nisot, J., 175, 176, 181
Noel-Baker, P. J., 418
Noel-Henry, L., 110, 120, 139, 140, 141,
152, 159, 167, 169, 175, 185, 186,
189, 226, 231, 239, 242, 246, 261,
270, 271, 274, 279, 280, 284, 286,
288, 356, 388
Non-intervention, 335, 347-50, 377, 382
Non-Recognition, 37-8, 54, 108-14, 126,
137, 142, 146, 148, 160-2, 185,
191, 199, 208, 210-1, 220, 251,
280, 289-90, 349, 350, 361-2,
411-43
Duty of, 416-9
Northern Russia, Provisional Govern-
ment, 142, 217, 235, 279
Norway, 63, 280, 295, 297
Nys, E., 15, 30, 46, 52, 77, 265, 267, 356
Objective Existence, 40, 41, 53, 63
Obreg6n, General, 116, 217, 220, 267
Occupation, Enemy, 60, 63-74
Odria, General, 116
Official Opinions, 79-88
Olivart, R. de, 366, 367
Oppenheim, L., 14, 17, 22, 25-6, 30-1,
39, 40, 48, 51, 55, 57, 64, 71, 72,
77,87,97,103,104,111,117,118,
123, 126, 130, 189, 198, 234, 266,
291, 292, 295, 303, 304, 305, 324,
325, 326, 335, 356, 360, 364, 367,
371, 372, 374, 378, 379, 381, 382,
399, 400, 407, 430, 431, 435, 436,
437, 438, 441
Oppenheimer, F. E., 66, 291, 296, 297
Optional Clause, 210
Orellana, General, 114
Organisation of American States, 31, 77
O'Rourke, V. A., 337, 347, 356
Ottoman Empire, 57
Outlawry, 37, 259-60, 426
Pacific Occupation, 291, 432
Pacta Sunt Servanda, 18, 21-3
Padelford, N. J., 260, 346, 347, 348, 349,
356, 359, 377, 382, 386, 393
Pakistan, 57, 88, 196
Panama, 114-5, 117, 202, 206, 282
Paraguay, 195, 220
Parent State, Recognition by, 77, 80,
308-11, 317, 371-80
Paxson, F. L., 79, 81, 85, 120, 198, 217
Peaslee, A. J., 226, 424, 441
Perrinjaquet, M., 430
Personal Status, 150-2
Peru, 116, 128, 196, 217, 220, 312, 313,
342, 370, 383, 385
Philippine Republic, 46, 195, 215, 291
Phillimore, Sir Robert, 15, 26, 79, 86,
111, 146, 220, 231, 290, 296,
325-6, 343, 356, 373, 388
Phillips, O. H., 226
Picciotto, C. M., 244
Pierce, F., 121
Pirates, Insurgents as, 233, 334-5, 338,
339, 346, 354, 402-5
Plymouth, Lord, 361
Poland, 63, 91-2, 102, 103, 173-4, 176-7,
178, 191, 196, 201, 203, 215, 265,
279-80, 292, 297
Index
459
Political Nature of Recognition, 50-2,
62, 225, 230, 239, 288
Politis, N., 212, 328, 353, 356
Polk, J. K., 121
Pollock, Sir Frederick, 19, 25, 26
Ports, Closure of, 345-6, 360, 377, 378,
385-7, 400
Portugal, 106, 119, 120, 123, 215
Positivism, 17-26, 28-9, 41, 46, 372, 374
Pradier-Fod6re, P., 32, 55
Premature Recognition, 50-1, 54, 85-6,
106, 290, 343, 358, 382, 416
Private Rights and Unrecognised
Governments, 150-65
Procedural Rights, 165
Property, 157-62, 164
Immunity of, 142-4
Provisional Agreements, 281, 282
Provisional Recognition, 235
Prudhomme, A., 152, 167, 168
Public Rights of Unrecognised Govern-
ments, 145-9
Puppet Governments, 299, 429
Qualified Recognition, 259-300, 340
Ralston, J. H., 121, 272, 316, 328, 385
Rankin, G., 92, 292
Rappard, W. E., 224, 226
Rebus Sic Stantibus, 101
Recognition,
collective, see Collective Recogni-
tion
conditions, see Conditions for
Recognition
consequences, 6, 44, 52-3
discretionary character, see Dis-
cretionary Character of
Recognition
duty, see Duty to Recognise
effects, see Effects of Recognition
function, 77-8, 79
legal nature, 41, 50-2, 62
mechanism, 39-46
modes, see Modes of Recognition
nature, 8
organ for, 224-32
parent State, see Parent State,
Recognition by
premature, see Premature Recog-
nition
proof, 233
purpose, 33
reciprocity, 41-3, 76
relativity, 39, 41, 45
revocation, see Revocation of
Recognition
States, 30-93
sub modo, 265-6, 269
universality, 39
Redslob,R., 14,43, 51,53, 54
Reeves, J. S., 192
Relations Officieuses, 216-21, 280
Rennell, Lord, 264, 294
Responsibility for Acts of Insurgents,
327-32, 344-5, 357, 373^1, 406,
407
Retroactivity of Recognition, 139, 172-
86, 276, 283-4
Revocation of Recognition, 65, 259-64,
281—2 395—7
Revolution, '99-101, 105, 108-9, 113,
136, 174-5, 180-1, 185, 299, 327-
8, 406, 412
Rhineland Occupation, 291
Right to Sue, 135-9
Rights of States, 32, 33, 38, 111-3,
128-9, 401
Rivas-Walker Government, 218, 230,
261
Rivier, A., 15, 16, 18, 52, 77, 97, 146,
265, 267, 278
Robinson, Sir Christopher, 338, 340, 370
Roman Republic, The, 299
Roosevelt, F. D., 196, 203
Root, E., 37, 424
Rougier, G., 97, 103, 111, 117, 122, 124,
130, 212, 213, 271, 278, 288, 306,
335, 356, 364, 365, 366, 367, 373,
374, 379, 383, 384, 392, 396
Roumania, 191, 218, 221, 222, 404
Roxburgh, Sir Ronald F., 26, 421, 433,
436, 437
Ruhr Occupation, 291, 432
Russell, Lord John, 118, 125, 127, 343,
358, 376, 385
Russia, see Union of Soviet Socialist
Republics
Russian Debts, 101
Ruthenia, 222
Saint Domingo, 100, 240-1, 313, 314,
341, 346-7, 354, 359, 375, 384,
389
Salmond, Sir John, 18, 19, 25, 34, 304,
435
Salvador, El, 108, 109
San Francisco Conference (1945), 103,
203
Sardinia, 100
Scelle, G., 15, 20, 26, 52, 55, 103, 117,
189, 212, 261, 270, 275, 307, 356,
427, 436
Schachter, O., 57
Schapiro, L. B., 101
Schlesinger, R., 101
Schmid, C, 65
Schwarzenberger, G., 14, 22, 28, 29, 31,
37, 50, 72, 77, 87, 92, 107, 111,
118, 123, 125, 130, 178,212,239,
260, 261, 262, 304, 325, 332, 344,
350, 351, 373, 400, 411, 418, 426,
430, 431, 432, 434, 435, 436, 437
Schwelb, E., 296
Scott, F. R., 86, 87
460
Index
Scott, J. B., 36, 58, 245, 335, 364, 368,
371, 374, 392, 395, 401
Scroggs, W. O., 112, 414
Serbia, 63, 100, 107, 222
Seward, W. H., 83, 107, 110, 122, 216,
219, 229, 316, 343, 354
Sharp, R. H., 418, 419, 426, 436
Sharp, W. E., 211
Sherwood, R. E., 77
Shone, Sir Terence, 117
Siam, 110, 215
Sicily, 230
Silvanie, H., 327, 331, 332
Simon, Sir John, 377-8, 391
Slovakia, 58, 204
Smith, H. A., 36, 41, 44, 80, 81, 106,
107, 111, 118, 123, 127, 128, 130,
197-8, 217, 228, 265, 267, 271,
273, 289, 294, 308, 313, 314, 326,
334, 338, 340, 341, 347, 356, 358,
359, 360, 362, 364, 370, 375, 376,
377, 379, 380, 382, 384, 390, 391,
392, 393, 395
S0rensen, M., 28, 29
South African Republics, 219, 326
Sovereign, Foreign, 233, 251-3
Sovereignty, 19-20, 31, 58, 234
Spain, 99, 119, 120, 146, 184, 199, 218,
220, 228, 230, 236, 251, 259-60,
278, 293, 296, 299, 328, 336, 338,
358, 375-6, 384, 404, 405
Nationalist Government, 142-3,
184, 200, 216, 217, 230, 236, 249,
251, 276, 277, 280, 298, 318-23,
360, 392
Spanish American Colonies, 38, 79-82,
84-5, 192, 228, 312-3, 337-9,
354, 365, 370, 391, 392
Spanish Civil War, 318-23, 346-50,
359-62, 367, 377-8, 382, 386,
389, 391, 404
Spenser, J. A., 412
Starke, J. G., 21, 436, 437
State Department Declarations, 253-5
Statehood, Requirements of, 55-62, 63,
74-6, 259, 290, 415
States, Recognition of, 30-93, 101-3,
414-5
Rights of, see Rights of States
Stille, H. E., 270
Stimson, H. L., 110, 112, 113, 127, 411,
414, 417
Stimson Note on Non-Recognition, 412,
417, 423, 427
Stodter, R., 70
Stowell, E. C, 110
Strupp, K., 60
Stuart, G. H., 198
Subjugation, 66, 430
Succession and Belligerent Communi-
ties, 323-32
Succession States (1919), 61, 90-2, 151
Sue, Right of Unrecognised Govern-
ment to, 135-9
Suit, Immunity from, 140-2
Switzerland, 135, 158, 210, 224, 225
Syria, 116, 215
Taborsky, E., 296
Tager, P., 162, 164, 167
Taracouzio, T. A., 191, 193, 194, 288
Temperley, H., 201, 207, 411, 429
Tennent, J. S., 144, 152, 153, 154, 155,
156, 165, 169, 170, 171
Texas, 196, 228, 265, 314, 341, 384, 392
Theodore, D., 116
Third States and Belligerent Communi-
ties, 312-32, 372-3, 380-2
Tinoco, F., 113
Title of Unrecognised State, 219, 220-1
Tobar Doctrine, 108
Transjordan, 192, 213, 215
Treaties, 44-6, 51, 86, 433^10
Bilateral, 192-6
Commercial, 44, 45
Multilateral, 201, 204-11, 221
Reservations, 208-10
Triepel, H., 14, 17-8, 23-4
Trieste, 64
Truman, H. S., 267
Turkey, 36, 57, 143, 195, 208, 292
Tuva, Republic of, 191
Twiss, Sir Travers, 15, 375, 379, 385
Two Sicilies, Kingdom of, 146
Ukraine, 151, 177, 215, 222
Unilateral Act Theory, 44-6
Union of South Africa, 86
Union of Soviet Socialist Republics, 42,
56, 75, 76-7, 99, 100-1, 102, 104,
119, 127, 137-9, 140, 141-2,
151-2, 152-7, 158, 159-62, 162-5,
168, 170-1, 172, 178, 179, 183,
193, 194, 195, 202-3, 204-5,
205-6, 207-8, 210, 214, 215, 220,
224, 235, 237, 238, 239, 248-9,
251, 266, 274, 275-6, 280, 282,
285-6, 288, 318
United Kingdom, 42, 57, 70-1, 74, 80-1.
84-5, 97, 106-7, 118-20, 123, 192;
194, 195, 198, 203, 217-8, 225,
234-6,. 248, 252, 262-4, 275-7,
279, 282, 289,' 299, 336, 337-8,
339—41, 343, 347, 358-9, 370,
375-6, 377-8, 379-80, 384-5,
386-7, 389-90, 391, 392, 395,
404-5
United Nations, 40, 56, 57, 77, 92-3,
203, 210, 213, 214, 215-6, 222,
379, 401, 418-9, 428, 437, 440
United Provinces, 120
United States of America, 54, 60, 81-4,
85-90, 97-8, 101, 107-10, 112-5,
120-3, 124-7, 158, 160-2, 165,
173, 178, 191-2, 194-5, 197, 200,
202-3, 205-6, 207-9, 210, 213,
215, 216, 217-20, 224-5, 226-9,
237-8, 263, 282, 286-7, 308-11,
Index
461
United States of America — continued
315, 324-6, 337, 338-9, 341-6,
347, 357-8, 371, 376, 377, 379-
80, 383, 384, 386-9, 390, 392, 395,
400-3, 404-5, 412, 417, 432
Unrecognised Governments, 99, 104,
166-71, 202-4, 216-21, 312
Immunity from legal process, 140-4
Right to sue, 135-9, 249-50
Validity of laws and acts, 145-65
Unrecognised States, 33-4, 38, 104, 204,
313
Uruguay, 200, 214, 341-2
Van Buren, M., 120-1, 271, 272
Vatican City, 59, 75, 76
Vattel, E. de, 14, 105, 111, 336, 356, 433
Venezuela, 107, 114, 174, 200, 216, 220,
230, 232, 314, 384, 386, 404
Verdross, A., 16, 17, 21, 35, 43
Vichy France, 299-300
Victoria, F. de, 36
Viet Nam, 58-9, 192, 283
Visscher, C. de, 186, 271, 295
Walker, W. L., 312, 337, 355, 360, 366,
379
Wallace, B. B., 441
War, 33^, 60, 63-74, 178, 232, 241,
262-3, 291, 300, 303-4, 305, 306,
307, 323, 334-6, 337, 339, 341,
343, 345, 348-9, 350, 356, 357,
359, 360-3, 364-5, 367-8, 370,
371, 375, 377-82, 384, 389, 393,
395-7, 398, 400, 405-6, 417, 422,
430, 432-3
Webster, Sir Charles, 43, 57, 192, 221
Wehberg, H., 356, 360, 364, 366, 367,
373, 379, 384, 399
Westlake, J., 15, 18, 25, 26, 27, 31, 61,
97, 325, 335, 353, 358, 362, 364,
366, 382, 396, 403, 404
Westminster, Statute of (1931), 86-7
Weston, M. F., 225, 242
Wharton, F., 82, 83, 110, 124, 216, 217,
233, 267, 271, 335, 400, 402, 404
Wheaton, H., 14, 28, 30, 32, 51, 54, 59,
86, 97, 111, 146, 189, 200, 315,
316, 343, 356, 366, 371, 377, 392,
421,426,432,435
Wheeler, E. P., 291
White Russia, 222
Williams, Sir John Fischer, 15, 20, 29,
36, 37, 39, 52, 54, 61, 78, 123,
210, 213, 214, 259, 266, 271, 273,
275, 288, 411, 418, 422, 423-6,
429, 431, 434, 435
Willoughby, W. W., 211, 225, 231, 245,
299, 412
Wilson, G. G., 245, 287, 370, 398, 399,
400, 401, 404, 406
Wilson, W., 108, 112, 148-9, 217, 229
Wilsonian Policy of Recognition, 108,
127, 414
Withdrawal of Recognition, 65, 102,213,
259-64, 265, 281-2, 395-7
Wolff, C, 336
Woolbert, R. J., 263
Woolsey, L. H., 108, 116, 426, 432
Woolsey, T. D., 105, 334, 353, 356, 398
World Health Organisation, 211
Wright, H., 67
Wright, Q., 73, 97, 98, 111, 137, 225,
226, 227, 229, 411, 414, 417, 418,
421, 424, 426, 427, 430, 433, 435,
436
Yemen, 267, 268
Yugoslavia, 63, 100, 151, 201, 266, 297
Zanzibar Protectorate, 411, 423
Zulagoa, General, 330
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